Cesar O. Garcia v. Dan Cromwell

In the

United States Court of Appeals

for the Seventh Circuit

____________________

No. 19-2771

CESAR O. GARCIA,

Petitioner-Appellant,

v.

DAN CROMWELL, Warden, *

Respondent-Appellee.

____________________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 17-C-693 — William C. Griesbach, Judge.

____________________

SUBMITTED SEPTEMBER 23, 2020 — DECIDED MARCH 11, 2022

____________________

Before SYKES, Chief Judge, and HAMILTON and ST. EVE,

Circuit Judges.

SYKES, Chief Judge. A Kenosha County jury convicted

Cesar Garcia of three counts of attempted homicide, three

counts of recklessly endangering safety, and one count of

aggravated battery for his conduct in a drive-by shooting

* We substituted Warden Dan Cromwell for Randall Hepp as the appel-

lee in this matter. FED. R. APP. P. 43(c).

2 No. 19-2771

that left one of his three victims seriously injured. Garcia’s

postconviction counsel moved for a new trial claiming that

trial counsel’s failure to request jury instructions on lesser-

included offenses amounted to ineffective assistance of

counsel. The trial judge denied the motion, and Garcia filed

a consolidated appeal of the judgment and the postconvic-

tion order as required by Wisconsin’s procedural rules. See

WIS. STAT. § 809.30(2).

In the meantime, the state moved to dismiss the reckless-

endangerment counts, acknowledging that they were lesser-

included offenses of the attempted-homicide counts. The

judge granted the motion and modified the judgment, and

the court of appeals affirmed the judgment as modified.

Garcia then returned to the trial court with a pro se post-

conviction motion under section 974.06 of the Wisconsin

Statutes raising two new claims of ineffective assistance of

trial counsel. That was procedurally problematic. Under

Wisconsin’s postconviction rules, Garcia had to raise all

available claims for relief in his first postconviction motion

or on direct appeal. State v. Escalona-Naranjo, 517 N.W.2d

157, 162–63 (Wis. 1994). Section 974.06(4) bars successive

postconviction motions unless the defendant can demon-

strate a “sufficient reason” for failing to raise the claim

earlier. Id.

In an appropriate case, ineffective assistance of postcon-

viction counsel may qualify as a sufficient reason to excuse a

procedural default. State v. Romero-Georgana, 849 N.W.2d

668, 678 (Wis. 2014). But this gateway to merits review of a

defaulted claim carries a heightened pleading burden:

Garcia needed to allege specific facts that, if true, would

establish his postconviction counsel’s ineffectiveness. Id. One

No. 19-2771 3

element of this pleading burden requires factual allegations

showing that the defaulted claims were “clearly stronger”

than the issues postconviction counsel chose to present. Id. at

679. The trial judge denied Garcia’s section 974.06 motion,

and the court of appeals affirmed, citing Escalona-Naranjo

and Romero-Georgana.

Garcia then petitioned for federal habeas relief under

28 U.S.C. § 2254, raising the two defaulted claims of ineffec-

tive assistance of counsel. The state opposed the petition on

the merits but also lodged a procedural objection, arguing

that federal review is barred because the state court’s deci-

sion rested on an independent and adequate state-law

ground—namely, procedural default under Escalona-Naranjo

and Romero-Georgana. The district judge rejected that objec-

tion but credited the state’s alternative argument that even if

trial counsel’s performance was deficient as Garcia claimed,

the mistakes were not prejudicial. The judge dismissed the

petition on that basis.

We affirm on different grounds. The state appellate court

rejected Garcia’s second postconviction motion based on the

Escalona-Naranjo bar and Garcia’s failure to satisfy Romero-

Georgana’s pleading standard for overcoming procedural

default. Those are independent and adequate state proce-

dural grounds, so federal review is barred unless Garcia can

establish cause for and prejudice from his default. He has

not done so.

I. Background

A. The Shooting

The drive-by shooting at the center of Garcia’s case was

the culmination of his months-long effort to intimidate his

former girlfriend Hilda Garcia-Rojas. Before she broke up

4 No. 19-2771

with him, Garcia told Hilda that if she ever left him for

someone else, he would kill her and her new boyfriend.

When she ended their relationship and moved in with Luis

Perez-Huitron, Garcia began stalking her. He followed her

home from work and parked down the street from the house

where she lived with Luis.

On the evening of April 16, 2008, Luis drove Hilda to her

third-shift factory job in Kenosha. After dropping her off at

about 10 p.m., Luis noticed Garcia’s car—a beige Mazda—

parked outside the factory. As Luis drove home, he saw that

Garcia was following him. Because of Garcia’s threats

against Hilda and previous stalking behavior, Luis called his

brother Arturo, explained the situation, and asked Arturo to

meet him at his house. Arturo agreed, arriving at Luis’s

house shortly after 10 p.m. with Luis’s brother-in-law Carlos

Bautista-Ibenez close behind him. The three men stood

outside the house next to Luis’s car.

Garcia parked his car down the block and gestured to-

ward Luis with his cell phone. He then called Luis at

10:24 p.m. Luis took the call and the two briefly argued.

Garcia ended the call at 10:27 p.m. and slowly drove toward

the trio. As he passed, he pulled out a gun and started

shooting at them. He missed Luis and Arturo, but one of his

shots struck Carlos in the upper chest.

Luis and Arturo rushed Carlos to the hospital. While on

the way, they called 911 to report the crime. Thanks to rapid

medical attention, Carlos survived. Doctors removed the

bullet from his chest.

Kenosha police officers responded to Luis’s house within

minutes. They secured the scene and quickly learned that

Garcia lived with his mother in nearby Racine. Officers from

No. 19-2771 5

the Racine Police Department drove by the home, but the

beige Mazda wasn’t there. They maintained surveillance and

shortly after midnight reported that the beige Mazda was

now parked outside the home. Some 25 officers from both

departments—including a full SWAT team—responded to

the home, and a lengthy standoff ensued. Officers surround-

ed the house and through a loudspeaker repeatedly ordered

the occupants to come outside.

Garcia’s mother held out for some time but eventually

complied. She initially denied that Garcia was there, but

within a few minutes she admitted that he was hiding in the

attic. Garcia continued to refuse the officers’ commands to

come out, even after they fired tear gas into the house.

About five hours into the standoff, officers entered the

house and took Garcia into custody. They then searched the

home inside and out and found a .22-caliber revolver hidden

under the back porch. In the basement they found a large

number of .22-caliber spent cartridges and a wooden board

riddled with bullet holes. A firearms examiner later deter-

mined that the bullet recovered from Carlos’s chest was fired

from the gun that was found under the porch, as were

several bullets recovered from Luis’s car at the scene. The

markings on the spent cartridges in the basement also

matched the gun. Finally, the police found Garcia’s cell

phone in the Mazda and confirmed that he had placed a call

to Luis’s phone number at 10:24 p.m.

Under further questioning by the police, Garcia’s mother

said that Garcia arrived home shortly before midnight that

evening, woke her up, and anxiously told her that he had

done something bad that night. She also stated that when the

officers ordered them to come out of the house, Garcia told

6 No. 19-2771

her to lie and say he was not home. She recanted these

statements at trial, but they were admitted into evidence

through an officer’s testimony.

B. Trial

Garcia was charged with three counts of attempted first-

degree homicide, three counts of first-degree recklessly

endangering safety, and one count of aggravated battery. The

case proceeded to trial in late July 2010. The state elicited the

evidence we’ve just described, and Carlos and Luis identi-

fied Garcia as the shooter. (Arturo corroborated their ac-

count of the shooting but did not make an in-court

identification.)

Garcia’s defense was that that Luis, Arturo, and Carlos

staged the shooting in order to frame him. As support for

this theory, he relied largely on his own testimony. He told

the jury that he sold illegal (i.e., stolen) firearms and that

Carlos was one of his better customers. He said that some-

time before the shooting, Carlos purchased the .22-caliber

revolver from him—the very gun the police found hidden at

Garcia’s home, which matched the bullet that was removed

from Carlos’s chest. To explain the matching bullet cartridges

in his basement, Garcia testified that he test-fired the gun to

show Carlos how it worked before selling it to him. In

closing argument Garcia’s attorney summed up the defense

theory this way: Carlos “somehow got himself shot” with his

own gun, and then while Luis and Arturo were driving him

to the hospital, he instructed Luis to plant the gun at Garcia’s

house so he wouldn’t get caught with a stolen firearm.

To explain the hours-long standoff with police, Garcia

testified that he hid in the attic to avoid being arrested on an

outstanding warrant for a missed court date a month before

No. 19-2771 7

the shooting on a charge of unlawfully possessing a different

.22-caliber handgun. This testimony opened the door to

cross-examination about the circumstances of that arrest.

Under questioning from the prosecutor, Garcia was forced to

admit that he had been arrested in his car while parked

outside a woman’s house in possession of binoculars, a ski

mask, rubber gloves, a loaded .22-caliber handgun, and

ammunition—incriminating items suggestive of stalking and

premeditated assault. He also acknowledged that when the

police questioned him about the gun, he told them—

falsely—that he had “just found” it. When the prosecutor

pressed him about that falsehood, Garcia confessed “I guess

I lied.”

In an effort to cast doubt on the identification testimony

from Luis and Carlos, Garcia’s attorney presented an expert

witness who testified that their accounts of the shooting

were inconsistent with some of the physical evidence at the

scene. But the expert’s analysis relied on questionable sup-

positions about the positions of the shooter, the three vic-

tims, and their vehicles. Finally, in closing argument Garcia’s

counsel insisted that Hilda was lying about Garcia’s threat-

ening behavior and also suggested that the police manufac-

tured the evidence of Garcia’s phone call to Luis at

10:24 p.m. on the night of the shooting.

The jury convicted Garcia on all counts. The judge im-

posed a sentence of 40 years in prison on the attempted

homicide counts, concurrent prison terms on the other

counts, and 20 years of extended supervision. 1

1 The judge structured the 40-year prison term as follows: 25 years on the

first count of attempted homicide; 15 years consecutive on the second;

8 No. 19-2771

C. State Postconviction Proceedings

Represented by new appointed counsel for postconvic-

tion proceedings and appeal, see § 809.30(2)(e), Garcia

moved for a new trial raising a claim under Strickland v.

Washington, 466 U.S. 668 (1984), that his trial attorney was

constitutionally ineffective for failing to request a jury

instruction on lesser-included offenses. The judge denied the

motion. As required by Wisconsin’s procedural rules, direct

appeal was delayed until the judge ruled on the postconvic-

tion motion, and then Garcia filed a single consolidated

appeal from the judgment and the postconviction order. See

§ 809.30(2)(h), (j).

While his appeal was pending, Garcia obtained leave to

reopen his postconviction motion, and the state conceded

that the reckless-endangerment counts were indeed lesser-

included offenses of the attempted-homicide counts. The

parties stipulated to the dismissal of those counts, and the

judge modified the judgment accordingly. In October 2014

the Wisconsin Court of Appeals affirmed the modified

judgment and rejected Garcia’s claim that his trial counsel

was ineffective. The Wisconsin Supreme Court denied

review.

In December 2015 Garcia returned to the trial court with

a pro se postconviction motion under section 974.06 raising

two new claims of ineffective assistance of trial counsel. He

claimed that his attorney should not have elicited the testi-

mony about his missed court date and arrest the month

before the shooting because it opened the door to damaging

and 15 years on the third, consecutive to the 25-year term on the first but

concurrent to the 15-year term on the second.

No. 19-2771 9

cross-examination about the details of that arrest. He also

claimed that his attorney should have objected to statements

during the prosecutor’s closing argument emphasizing those

details and other statements vouching for the credibility of

the state’s witnesses. To explain why he did not bring these

claims in his first postconviction motion, Garcia blamed it on

ineffective assistance by his postconviction counsel.

The trial judge denied the pro se motion without an evi-

dentiary hearing. Garcia appealed, and in January 2017 the

Wisconsin Court of Appeals summarily affirmed in a brief

order. The appellate court explained that the new claims

were procedurally barred under Escalona-Naranjo because

Garcia failed to raise them in his first postconviction motion

and failed to adequately plead a sufficient reason for the

default. In particular, the court observed that Garcia “fail[ed]

to demonstrate how and why these [new] claims are ‘clearly

stronger’ than the issues postconviction counsel … pre-

sent[ed]” in the first motion. State v. Garcia, No. 2016AP381,

2017 WL 218298, at *2 (quoting Romero-Georgana, 849 N.W.2d

at 679). The Wisconsin Supreme Court denied review in

April 2017.

D. Federal Habeas Petition

A few months later, Garcia filed a pro se petition for ha-

beas relief under § 2254 raising the same Strickland claims

that the state courts had dismissed as barred under Escalona-

Naranjo and Romero-Georgana. 2 Garcia later retained an

2 Garcia also brought a Strickland claim based on the double-jeopardy

defect he raised in his first postconviction motion stemming from trial

counsel’s failure to request jury instructions on lesser-included offenses.

The district judge dismissed that claim at screening and rejected Garcia’s

10 No. 19-2771

attorney, and counsel filed an amended petition but did not

materially alter the nature of the claims.

The state responded with a procedural objection, noting

that Escalona-Naranjo and Romero-Georgana—the cases on

which the state appellate court rested its decision—are

independent and adequate state rules of procedural default,

so Garcia had to demonstrate cause for and prejudice from

the default and could not do so. Alternatively, the state

urged the court to reject Garcia’s claims on the merits.

The district judge agreed that the Escalona-Naranjo bar

was an independent and adequate state rule, but he nonethe-

less held that Garcia had not procedurally defaulted his

federal claims. The judge reasoned that the pleading re-

quirement announced in Romero-Georgana was not clearly

established under Wisconsin law and, in any event, was too

enmeshed with the merits of the Strickland ineffectiveness

inquiry to be considered an independent state procedural

rule.

Moving to plenary review of the merits of Garcia’s

claims, the judge ruled that trial counsel “arguably” had

strategic reasons to elicit Garcia’s testimony about his missed

court date and prior arrest and to refrain from objecting to at

least some of the prosecutor’s statements in closing argu-

ment. But he found deficiencies of a constitutional dimen-

sion in other aspects of trial counsel’s performance—

specifically, counsel’s failure to object to the prosecutor’s

inquiry into the specific details of the prior arrest and the

prosecutor’s closing argument “portray[ing] Garcia as a

later attempt to revive it. Garcia does not challenge that decision on

appeal.

No. 19-2771 11

predatory criminal stalking a woman and planning an

unrelated crime.” The judge held, however, that counsel’s

failure to object was not prejudicial given the overwhelming

evidence of Garcia’s guilt and his implausible defense strate-

gy, which was premised on a “concocted” story that “made

no sense.” The judge accordingly denied the petition and

declined to grant a certificate of appealability.

Garcia then asked this court for a certificate of appeala-

bility on his two Strickland claims. See 28 U.S.C. § 2253(c). A

motions judge granted that request and also ordered the

parties to address the issue of procedural default.

II. Discussion

We begin as we must with procedural default. “Merits

review of a habeas claim is foreclosed if the relevant state

court’s disposition of the claim rests on a state law ground

that is adequate and independent of the merits of the federal

claim.” Triplett v. McDermott, 996 F.3d 825, 829 (7th Cir. 2021).

When a state court rejects a prisoner’s challenge to his

conviction on an independent and adequate state-law

ground, “principles of comity and federalism dictate against

upending the state-court conviction” and the federal claim is

deemed procedurally defaulted. Thomas v. Williams, 822 F.3d

378, 384 (7th Cir. 2016). Unless the petitioner can establish

“cause” for and “prejudice” from the default, “federal

habeas review is at an end.” Johnson v. Thurmer, 624 F.3d 786,

789 (7th Cir. 2010). We review questions of procedural

default de novo. Id.

The analysis here requires some unpacking of the state

procedural regime for criminal appeals and postconviction

proceedings. As we’ve noted in prior cases, “the criminal

appeal process in Wisconsin is unusual” and characterized

12 No. 19-2771

by some “counterintuitive” complexity. Carter v. Buesgen,

10 F.4th 715, 717–18 (7th Cir. 2021); see also Morales v.

Boatwright, 580 F.3d 653, 656–57 (7th Cir. 2009); Huusko v.

Jenkins, 556 F.3d 633, 634–35 (7th Cir. 2009). The complexity

is largely attributable to the state’s decision to “combine[]

some aspects of direct and collateral review by allowing

post-judgment, but pre-appeal, motions to raise matters

outside the trial record.” Huusko, 556 F.3d at 634–35.

A. Postconviction Procedure in Wisconsin

After a conviction and sentencing in a Wisconsin criminal

case, “a defendant’s first avenue of relief is a postconviction

motion under § 974.02” of the Wisconsin Statutes. Page v.

Frank, 343 F.3d 901, 905 (7th Cir. 2003). In contrast to the

practice in many other jurisdictions, claims of ineffective

assistance of counsel may—and, as we shall see, usually

must—be raised at this postjudgment, preappeal stage of the

proceedings. Id.; see also Romero-Georgana, 849 N.W.2d at 677–

68; State v. Lo, 665 N.W.2d 756, 766 (Wis. 2003); Escalona-

Naranjo, 517 N.W.2d at 158–59.

We recently sketched the steps that precede a section

974.02 motion. Carter, 10 F.4th at 717–18. In brief, the defend-

ant must file a notice of intent to pursue postconviction relief

within 20 days of judgment; the clerk of court then notifies

the public defender’s office and forwards a copy of the

judgment and certain other records; and the public defend-

er’s office then orders transcripts and appoints counsel to

represent the defendant in postconviction proceedings and

on appeal. § 809.30(2)(b), (c), (e). Within 60 days, the clerk of

court sends a copy of the court record to postconviction

counsel, and the court reporter has the same 60-day window

to file and serve the transcripts (unless the deadline is ex-

No. 19-2771 13

tended). § 809.30(2)(g). A postconviction motion or notice of

appeal ordinarily must be filed within 60 days of receipt of

the court record or transcripts, whichever is later.

§ 809.30(2)(h). This deadline, too, can be extended. See Carter,

10 F.4th at 717–18 (discussing the systemic delays in

Wisconsin’s unique postconviction process).

Importantly, the defendant “shall file a motion for post-

conviction … relief before a notice of appeal is filed unless the

grounds for seeking relief are sufficiency of the evidence or

issues previously raised.” § 809.30(2)(h) (emphasis added);

see also WIS. STAT. § 974.02(2). The point of this requirement is

to give the trial court the opportunity to address all claims of

error and then to consolidate all claims for relief in a single

appeal. Accordingly, as a general matter, “the § 974.02

postconviction motion operates as a prerequisite to accessing

the state’s direct appeal process.” Carter, 10 F.4th at 718; see

also Page, 343 F.3d at 906.

Later on in the process, “[a]fter the time for appeal or

postconviction remedy provided in [section] 974.02 has

expired,” the defendant may proceed under section 974.06,

which permits a prisoner to move the sentencing court to

“vacate, set aside or correct the sentence” on “the ground

that the sentence was imposed in violation of the

U.S. [C]onstitution.” WIS. STAT. § 974.06(1). This is

Wisconsin’s equivalent to a motion for collateral relief under

28 U.S.C. § 2255. Lo, 665 N.W.2d at 760; Escalona-Naranjo,

517 N.W.2d at 160.

At first glance section 974.06 seems quite permissive. It

states that the motion “is a part of the original criminal

action” and “may be made at any time.” § 974.06(2). But

subsection (4) contains a critical restriction:

14 No. 19-2771

All grounds for relief available to a person un-

der this section must be raised in his or her

original, supplemental or amended motion.

Any ground finally adjudicated or not so

raised, or knowingly, voluntarily and intelli-

gently waived in the proceeding that resulted

in the conviction or sentence or in any other

proceeding the person has taken to secure re-

lief may not be the basis for a subsequent mo-

tion, unless the court finds a ground for relief

asserted which for sufficient reason was not as-

serted or was inadequately raised in the origi-

nal, supplemental or amended motion.

§ 974.06(4).

This bar on successive motions isn’t limited to successive

section 974.06 motions. The Wisconsin Supreme Court has

interpreted subsection (4) more broadly: a prisoner may not

raise in a section 974.06 motion a federal constitutional issue

that was raised or could have been raised in a postconviction

motion under section 974.02 or on direct appeal. Escalona-

Naranjo, 517 N.W.2d at 162. The upshot is that a defendant

must raise all available claims for relief, including Strickland

claims, at the earliest opportunity—that is, in a section

974.02 motion or on direct appeal. Id. at 162. Failure to do so

bars relief under section 974.06 unless the defendant can

establish a “sufficient reason” to excuse the default. Id. at

162–63.

Ineffective assistance of postconviction counsel can be a

“sufficient reason” to excuse a prisoner’s failure to bring a

claim earlier. State v. Allen, 786 N.W.2d 124, 139 (Wis. 2010).

But the mere suggestion that postconviction counsel was

No. 19-2771 15

ineffective does not by itself open the door to merits review

of a defaulted claim. Instead, a prisoner must provide specif-

ic, nonconclusory factual allegations explaining why his

postconviction counsel was ineffective. Id. at 139–40. If

ineffective assistance of postconviction counsel is adequately

pleaded, the trial court must then provide an evidentiary

hearing and “perform the necessary factfinding function and

directly rule on the sufficiency of the reason.” Id. at 139

(quotation marks omitted). In contrast, if a petitioner fails to

allege “specific facts that, if proved, would constitute a

sufficient reason,” the trial court will “summarily deny” the

section 974.06 motion without an evidentiary hearing. Id. at

140. That was the case in Allen, where the prisoner’s motion

was insufficient to overcome the Escalona-Naranjo bar be-

cause it failed to “allege any facts that, if proved, would

constitute deficient performance” by postconviction counsel

or “any facts that, if proved, would constitute prejudice.” Id.

at 139.

The Wisconsin Supreme Court’s decision in Romero-

Georgana builds on Allen and Escalona-Naranjo by elaborating

the pleading threshold necessary to justify holding an evi-

dentiary hearing on a prisoner’s claim that ineffective assis-

tance of postconviction counsel is a sufficient reason to

excuse his procedural default. The court held that “[t]o move

beyond the initial prerequisites of Wis. Stat. § 974.06(4) and

Escalona-Naranjo, and to adequately raise a claim for relief, a

defendant must allege sufficient material facts—e.g., who,

what, where, when, why, and how—that, if true, would

entitle [him] to the relief he seeks.” Romero-Georgana,

849 N.W.2d at 678 (quotation marks omitted). Echoing what

it said in Allen, the court explained that if a prisoner satisfies

this pleading standard, the trial court may hold an eviden-

16 No. 19-2771

tiary hearing and “directly rule on the sufficiency of the

reason.” Id. (quotation marks omitted). If, on the other hand,

the prisoner’s motion fails to satisfy this pleading threshold,

it must be denied. Id.

The “why” requirement is particularly relevant here. To

adequately allege that ineffective assistance of postconvic-

tion counsel qualifies as a “sufficient reason” to excuse a

procedural default, a prisoner must allege why the claims he

now wants to raise are “clearly stronger than the claims

actually raised.” Id. at 683. Then the trial court can compare

the new theories of trial counsel’s ineffectiveness relative to

those theories that postconviction counsel already pursued.

Id. at 679. Much like it did in Allen, the Wisconsin Supreme

Court concluded in Romero-Georgana that the trial court

correctly denied an evidentiary hearing because the prisoner

failed to allege how and why the claim that he wanted to

raise was clearly stronger than the claim that his postconvic-

tion counsel actually raised. Id. at 685–86.

To summarize, under section 974.06(4) and Escalona-

Naranjo, all available claims for postconviction relief must be

raised in a first postconviction motion under section 974.02

or on direct appeal. The statute preserves a narrow gateway

to merits review of a defaulted federal claim. To pass

through it, a prisoner must establish a “sufficient reason” for

not bringing the claim earlier. Ineffective assistance of

postconviction counsel may be a sufficient reason, but Allen

and Romero-Georgana establish an additional procedural

requirement—in the form of a special pleading burden—

when a prisoner’s section 974.06 motion raises ineffective

assistance of postconviction counsel as a reason to excuse his

procedural default.

No. 19-2771 17

B. Independent and Adequate State Ground

With the legal background in place, we can return to the

question whether the Wisconsin Court of Appeals “clearly

and expressly” relied on a state procedural bar that is both

“independent of the federal question and adequate to sup-

port the judgment.” Lee v. Foster, 750 F.3d 687, 693 (7th Cir.

2014) (quotation marks omitted). We conclude that it did.

“A state law ground is independent when the court actu-

ally relied on the procedural bar as an independent basis for

its disposition of the case.” Thompkins v. Pfister, 698 F.3d 976,

986 (7th Cir. 2012) (quoting Kaczmarek v. Rednour, 627 F.3d

586, 592 (7th Cir. 2010)). There’s no ambiguity here about the

basis of the state court’s decision: the Wisconsin Court of

Appeals unequivocally relied on the Escalona-Naranjo proce-

dural bar and Garcia’s failure to satisfy the Romero-Georgana

pleading requirement. Garcia does not argue otherwise. The

dispute centers on whether the rules announced in these two

decisions are truly independent of the merits.

The district judge acknowledged that the Escalona-

Naranjo bar is an independent procedural rule, but he sug-

gested that Romero-Georgana—and in particular, the “clearly

stronger” requirement—is really just a gloss on the Strickland

framework for claims of ineffective assistance of counsel.

This reflects a misunderstanding of Wisconsin’s postconvic-

tion procedures. The Romero-Georgana pleading requirement

implements the Escalona-Naranjo procedural regime.

Garcia proceeds under the same basic misunderstanding,

claiming that the Wisconsin Court of Appeals thought that

Romero-Georgana “somehow triggered” the Escalona-Naranjo

bar. That has it backward. The baseline under section

974.06(4) is that Garcia’s new claims for ineffective assistance

18 No. 19-2771

of trial counsel were procedurally barred under Escalona-

Naranjo because he did not raise them previously in his

section 974.02 motion. It was up to him, under Allen and

Romero-Georgana, to trigger the exception to the bar by first

satisfying the pleading burden to invoke ineffective assis-

tance of postconviction counsel as a sufficient reason to

excuse his default.

Garcia also argues that Romero-Georgana’s pleading

standard is too entangled with the merits of his federal

claims to be an independent basis for the state court’s deci-

sion. We rejected a similar argument in Triplett, an analogous

case that addressed Wisconsin’s procedural regime for

postconviction motions seeking to withdraw a guilty plea

based on ineffective assistance of counsel. 996 F.3d at 829–30.

In Triplett the Wisconsin Court of Appeals had affirmed the

denial of the defendant’s ineffectiveness claim because he

failed to satisfy the pleading requirement established in State

v. Bentley, 548 N.W.2d 50, 55 (Wis. 1996), for postconviction

plea-withdrawal motions based on ineffective assistance of

counsel. Triplett, 996 F.3d at 829–30. We concluded that the

federal claim was procedurally defaulted because the state

court of appeals “focused entirely on the adequacy of

Triplett’s pleading; nowhere is there a finding as to the

merits of his ineffectiveness claim.” Id. at 830.

The same is true here. Indeed, the Romero-Georgana

pleading rule rests in part on the pleading requirement

announced in Bentley. See Romero-Georgana, 849 N.W.2d at

678. Here, as in Triplett, the state court of appeals focused

entirely on Garcia’s failure to carry his pleading burden

under Romero-Georgana: the court summarily affirmed

Garcia’s claims as “procedurally barred,” citing Escalona-

No. 19-2771 19

Naranjo and Romero-Georgana, and never engaged in a merits

analysis of the defaulted Strickland claims.

The court’s reliance on Escalona-Naranjo and Romero-

Georgana was also “adequate” to support its judgment.

Adequacy in this context requires that the state-law ground

be “firmly established and regularly followed” and not

applied in a way that imposes “novel and unforeseeable

requirements without fair or substantial support in prior

state law” or “discriminate[s] against claims of federal

rights.” Clemons v. Pfister, 845 F.3d 816, 820 (7th Cir. 2017)

(quotation marks omitted) (alteration in original). We have

little difficulty concluding that Escalona-Naranjo and Romero-

Georgana are “firmly established and regularly followed”

rules of Wisconsin postconviction procedure. The bar on

successive postconviction motions is embedded in section

974.06(4) and is regularly followed by Wisconsin courts. See,

e.g., Perry v. McCaughtry, 308 F.3d 682, 690 (7th Cir. 2002).

And Allen and Romero-Georgana firmly establish what a

prisoner must do at the pleading stage to invoke ineffective

assistance of postconviction counsel as a reason to excuse a

procedural default.

C. Cause and Prejudice

Garcia’s default precludes federal habeas review of his

new Strickland claims unless he can establish cause for and

prejudice from the default. Thompkins, 698 F.3d at 986. Cause

requires a showing of “some type of external impediment”

that prevented him from presenting his claims. Id. at 987

(quotation marks omitted). Garcia has not identified any

external impediment that prevented him from satisfying the

Romero-Georgana pleading threshold necessary to obtain

relief from the Escalona-Naranjo bar. He simply repeats his

20 No. 19-2771

complaints about his postconviction counsel. But errors by

counsel in the first round of postconviction proceedings

cannot serve as cause to excuse Garcia’s own default in the

second. 3

Even if we assume for the sake of argument that Garcia

had identified a cause external to him to excuse his default,

he has not established prejudice. Looking through postcon-

viction counsel’s performance to the alleged errors of trial

counsel, we do not see any reasonable probability of a

different result had trial counsel avoided the subject of

Garcia’s prior arrest or objected to the parts of the prosecu-

tor’s closing argument that he now identifies as problematic.

On this point we agree with the district judge: the evi-

dence of Garcia’s guilt was overwhelming. Carlos and Luis

identified him as the shooter. Hilda testified about his

jealousy, stalking, and threats, which established a compel-

ling motive for the crimes. Uncontradicted physical evidence

corroborated the eyewitness identifications—most notably,

the forensic examiner’s testimony about the match between

the handgun found under Garcia’s porch, the bullet recov-

ered from Carlos’s chest, the bullets recovered from Luis’s

car at the scene, and the empty casings in Garcia’s basement.

Garcia’s cell phone confirmed that he made a call to Luis’s

phone moments before the shooting began. Finally, Garcia’s

3 A claim of ineffective assistance must be properly raised in state court

“before it can suffice on federal habeas relief as ‘cause’ to excuse the

default of another claim (even if that other claim is also ineffective

assistance of counsel).” Dellinger v. Bowen, 301 F.3d 758, 766 (7th Cir.

2002) (citing Edwards v. Carpenter, 529 U.S. 446, 452–54 (2000)). “If the

second claim of ineffective assistance of counsel is itself defaulted, the

petitioner will be fully defaulted.” Id.

No. 19-2771 21

defense theory—that Carlos “somehow got himself shot”

with his own gun and then told Luis and Arturo to plant the

gun at Garcia’s house—was not remotely plausible.

Garcia offers no meaningful response to this mountain of

evidence against him. He focuses on the prejudicial effect of

the prior-arrest evidence and the prosecutor’s remarks in the

abstract and makes little effort to examine whether the

alleged errors by trial counsel were prejudicial on the specif-

ic facts of this case.

Because the state appellate court’s decision rests on an

independent and adequate state-law ground, Garcia’s

Strickland claims regarding his trial counsel’s performance

are defaulted. He has not established cause for and prejudice

from the default, so federal merits review of the claims is

foreclosed.

AFFIRMED