George Brown v. Cheryl Eplett

In the

United States Court of Appeals

For the Seventh Circuit

No. 21-1515

GEORGE L. BROWN,

Petitioner-Appellant,

v.

CHERYL EPLETT,

Respondent-Appellee.

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 3:19-cv-01010-bbc — Barbara B. Crabb, Judge.

ARGUED NOVEMBER 10, 2021 — DECIDED SEPTEMBER 7, 2022

Before MANION, ROVNER, and WOOD, Circuit Judges.

ROVNER, Circuit Judge. A Wisconsin jury convicted George

Brown of first-degree reckless injury by use of a dangerous

weapon after he stabbed his cousin K.M.1 in the head during a

1

Consistent with Wisconsin law, the parties have identified the victim

(continued...)

2 No. 21-1515

drunken brawl at Brown’s home. See Wis. Stat. § 940.23(1)(a).

Brown now seeks relief in habeas corpus, arguing that he was

deprived of due process when the trial court erroneously

refused to instruct the jury on the castle doctrine as part of his

self-defense theory. We affirm the district court’s decision

denying his habeas petition.

I.

Brown had agreed to host a barbeque at his Madison,

Wisconsin home in July 2014 to celebrate the new job for which

K.M.’s wife had been hired. K.M. and Brown both became

inebriated as they drank throughout the afternoon and

evening. As the hour grew late, Brown and K.M. got into an

argument that escalated into a physical altercation in the

garage. Friends tried to break up the fight, urging K.M. to

leave. K.M. struck a friend in the mouth in the process, causing

that individual to wash his hands of the matter and go home.

K.M.’s wife Rebecca managed to escort K.M. to his car, which

was parked on the cul-de-sac in front of Brown’s house. But the

fight continued: K.M. doffed his undershirt and threw his

shoes at Brown and Brown responded in kind, removing his

own shirt and throwing pieces of scrap trim lumber at K.M.2

According to K.M.’s wife Rebecca, K.M. was standing in the

street when Brown said “I’ve got something for you” (R. 5-5 at

1

(...continued)

solely by his initials. See Wis. Stat. § 809.86(4). We shall do the same.

2

Brown had the scrap lumber on hand for use in a smoker that he used to

ward off mosquitoes. He threw some 21 pieces of the wood at K.M.

No. 21-1515 3

2), went into his house, came back outside, at which point

Rebecca saw a knife in his hand, and walked down the

driveway toward K.M. By her account, K.M. backed away and

picked up two pieces of wood that Brown had thrown at him.

The men continued to argue. Brown took a swing at K.M. with

the knife, K.M. swung back with the wood, and ultimately

Rebecca heard a crack and saw her husband spin around and

drop to the ground with the knife buried in his head.

Brown gave a different account of events when he took the

witness stand at trial. He said that while he was standing at the

top of his driveway, K.M. picked up the two pieces of wood

(which Brown described as “sticks”) and came up the driveway

toward him. Fearing what K.M. might do, he picked up a knife

from the grill outside of his garage. K.M. approached and

raised his hands as if he were about to strike Brown. K.M.

stood 6 feet tall, weighed 220 pounds, and at age 39 was nearly

20 years younger than Brown. Brown went into “combat

mode” (R. 5-13 at 73) and swung his knife at K.M. He did not

realize he had actually stabbed K.M. until K.M. walked back

down the driveway to his car and collapsed in the street.

In the moments immediately after he stabbed K.M., Brown

did not call 911 to summon aid for K.M., did not voice concern

for him, and did not express remorse for what had occurred.

Instead, according to multiple witnesses, he made statements

to the effect of “that will teach him” (R. 5-11 at 67), “I should

have killed your ass” (R. 5-10 at 94, 98), “He ain’t dead yet but

I’ll kill him” (R. 5-11 at 49), and, to the victim’s wife, Rebecca,

“I got one for you too, bitch” (R. 5-11 at 61; see also R. 5-11 at 31;

R. 5-13 at 33). Indeed, according to Rebecca, after making the

latter remark, Brown walked down the driveway toward her

4 No. 21-1515

with what looked like another knife in his hand. Brown would

later acknowledge having made such remarks, attributing

them to the heat of the moment, when he was still feeling the

effects of adrenaline from the confrontation. But in the ensuing

days, in multiple recorded telephone calls from jail to Jill

Phillips, whom he was then dating, Brown made a series of

statements seemingly attributing the stabbing to anger and

exasperation with K.M. as opposed to fear for his own safety.

For example, he said that on the night of the barbeque, K.M.

had “pissed me off” and “ask[ed] for it,” despite “know[ing]

better.” R. 5-13 at 113–15. “Why push my buttons[?]” he asked

Phillips. “Why push them when you know I’m going to go.

Why take me there when you already know I’m going to go.

Shit.” R. 5-13 at 115. He also acknowledged to Phillips that he

had “fucked up” and “put myself in this position.” R. 5-13 at

113, 115.

The knife wounds on K.M.’s body indicated that he was

struck a total of three times: once in the upper left shoulder,

where he had a wound 3.5 centimeters long, once on the back

of his left arm, where he had a 2.5-centimeter wound, and once

in the head, in front of his left ear. Brown stabbed K.M. in the

head forcefully enough that the knife’s 8-inch blade penetrated

the skull at his left temple, passed through the brain, and

lodged in the skull on the right rear side of his head. K.M.

survived the stabbing but was left with numerous cognitive

and physical impairments and will require care for the remain-

der of his life.

Brown was charged with both first-degree attempted

homicide and first-degree reckless injury. He pleaded not

No. 21-1515 5

guilty to the charges and the State’s case against him was tried

before a jury over the course of four days.

Brown’s theory of the case was that he stabbed K.M. in self-

defense. The standard Wisconsin jury instruction on self-

defense advises the jury that a defendant who invokes the

privilege of self-defense must have reasonably believed that

the amount of force he used was necessary to terminate an

actual or imminent unlawful interference with his person.3 And

3

Thus, the instruction given to the jury in this case provided, in relevant

part, as follows:

The law of self-defense allows a defendant to threaten or

intentionally use force against another only if the defen-

dant believed there was an actual or imminent unlawful

interference with the defendant’s person and the defen-

dant believed that the amount of force the defendant used

or threatened to use was necessary to prevent or terminate

the interference and that the defendant’s beliefs were

reasonable.

The defendant may intentionally use force which is

intended or likely to cause death or great bodily harm only

if the defendant reasonably believed that the force used

was necessary to prevent imminent death or great bodily

harm to himself.

A belief may be reasonable even though mistaken. In

determining whether the defendant’s beliefs were reason-

able, the standard is what a person of ordinary intelligence

and prudence would have believed in the defendant’s

position under the circumstances that existed at the time of

the alleged offense.

The reasonableness of the defendant’s beliefs must be

determined from the standpoint of the defendant at the

time of the defendant’s acts and not from the viewpoint of

(continued...)

6 No. 21-1515

although the jury is further advised that an individual protect-

ing himself from another has no duty to retreat, the instruction

nonetheless allows the jury to consider the availability and

feasibility of retreat when evaluating the reasonableness of the

defendant’s use of force.4 But Brown asked the court to modify

the instruction to reflect the castle doctrine, which grants an

individual greater latitude in using force to defend himself on

the premises of his home and gives a defendant claiming self-

defense in that setting a substantial leg up in the jury’s assess-

ment of the defense. See State v. Johnson, 961 N.W.2d 18, 26

(Wis. 2021). Here, a self-defense instruction reflecting the castle

doctrine would have directed the jury to presume that the

defendant reasonably believed his use of force was necessary

to protect himself from imminent death or great bodily harm

3

(...continued)

the jury now.

R. 5-14 at 21–22.

4

The jury was specifically advised as follows on the matter of retreat:

There is no duty to retreat. However, in determining

whether the defendant reasonably believed the amount of

force used was necessary to prevent or terminate the

interference, you may consider whether the defendant had

the opportunity to retreat with safety, whether such retreat

was feasible, and whether the defendant knew of the

opportunity to retreat.

R. 5-14 at 22.

No. 21-1515 7

and would have expressly barred the jury from considering

whether the defendant had an opportunity to retreat.5

For the castle doctrine to apply, the defendant must employ

force against someone who is in the process of unlawfully and

forcibly entering—or has so entered—the defendant’s dwell-

ing, which the legislature has defined to include the home’s

driveway. Wis. Stat. § 938.48(1m); State v. Chew, 856 N.W.2d

541, 543–44 (Wis. Ct. App. 2014). Consequently, it was material

whether the final physical altercation between Brown and K.M.

that culminated in the stabbing took place in the street or on

Brown’s driveway. Cf. id. at 545–46 (castle doctrine did not

apply where intruders who attacked defendant had already

left his apartment and were fleeing across the building’s

common parking lot, which did not constitute part of his

dwelling, by the time he employed deadly force).

As our summary thus far indicates, there was a conflict in

the testimony as to precisely where K.M. was located during

5

The castle-doctrine version of the instruction would have advised the

jury:

There is no duty to retreat. You must not consider evi-

dence relating to whether the defendant had an opportu-

nity to flee or retreat in deciding whether the state has

proved that the defendant did not act lawfully in self-

defense.

Wis. Crim. Jury Instr. 810 n.1; R. 5-5 at 5. Additionally, consistent with

statutory provision on the castle doctrine, the jury would have been

instructed to “presume that the [defendant] reasonably believed that the

force was necessary to prevent imminent death or great bodily harm to

himself … .” Wis. Stat. § 939.48(1m)(ar).

8 No. 21-1515

the final altercation when Brown struck him with the knife:

Brown testified that K.M. had charged up the driveway to

where Brown was standing next to the grill at the top of the

driveway, whereas K.M.’s wife Rebecca testified that Brown

had come down the driveway and confronted K.M. in the

street. Apart from these two accounts, there was additional

witness testimony addressing this point.

Kelan Phillips (“Kelan”), a 13-year-old boy who lived across

the cul-de-sac from Brown’s home, told police officers in the

immediate aftermath of the incident that he witnessed the

altercation from his upstairs bedroom window. According to

the officers, Kelan said that he saw K.M. standing in the street,

heard Brown yelling at K.M., saw Brown walk toward K.M.

and, when Brown reached the street, saw Brown strike K.M. in

the head. K.M. had something in his hand and raised his hand

as if to strike Brown, but he collapsed before he was able to do

so. When he was called to testify at trial, Kelan (then age 14) for

the most part professed not to recall what he saw on the night

of the incident or what he had told the police. The trial court

permitted the officers who had spoken with Kelan to recount

what Kelan had told them. Kelan’s mother Jill was Brown’s

girlfriend at the time of the incident. At one point in his

testimony, Kelan interjected without prompting that “George

is a nice dude, he is nice, he just made a wrong mistake that

day.” R. 5-12 at 107.

Cynthia Harms, another neighbor who lived across the cul-

de-sac from Brown, also testified. On the night of the alterca-

tion, she had been asleep but was awakened by the sound of

yelling. When she looked out her upstairs bedroom window,

she saw shadows and heard scuffling near the driveway,

No. 21-1515 9

where Brown’s red Ford Mustang was parked. (She could not

see who was involved in the scuffle.) She went downstairs

briefly to retrieve her phone and called the police. When she

returned to the window, she saw a man (presumably K.M.) at

the foot of the driveway and heard a woman (presumably

K.M.’s wife Rebecca) telling him to get into the car. K.M.

walked toward his car, which was parked at the curb immedi-

ately next to (and partially blocking) the mouth of the drive-

way, and then fell down in front of the vehicle.6 Harms was

asked directly at trial whether she had seen an altercation in

the driveway, and she said that she had not: she said she had

not seen anything that took place between the scuffle she

initially heard and subsequently observing K.M. at the bottom

of the driveway. She also testified that at no time during the

period she was observing events across the street had she seen

Brown, whom she knew. She did tell a police officer that at

some point during the incident she heard a voice that she

recognized as Brown’s say, “I’ve got one for you too, bitch.” R.

5-13 at 33.

The trial court denied Brown’s request for an instruction on

the castle doctrine, reasoning that K.M. was an invitee and thus

was not in any way attempting to forcibly enter any part of

Brown’s dwelling.7 Instead, the court gave the standard self-

defense instruction. Among other points, the prosecutor

6

Harms told the 911 dispatcher that K.M. fell in the grass next to the

driveway.

7

There was testimony, however, that prior to the stabbing, Brown had

repeatedly told K.M. to leave.

10 No. 21-1515

argued in closing that even if Brown’s version of events were

believed, he had a feasible way of avoiding the near-fatal

encounter with K.M. by retreating into his garage or house.

The jury acquitted Brown of the attempted homicide charge

but convicted him on the reckless-injury charge. The trial court

sentenced him to a period of 12 years in prison followed by 10

years of extended supervision. The court denied Brown’s post-

conviction motion asserting that it was error not to instruct the

jury on the castle doctrine. The court reasoned in part, “In the

instant action, the Castle Doctrine does not apply because

[K.M.] was initially an invitee to a family barbeque. Addition-

ally, there is not any credible evidence that [K.M.] was ‘unlaw-

fully or forcibly entering’ any portion of Brown’s ‘dwelling’ at

the time of the stabbing.” R. 5-2 at 53.

Brown appealed, arguing as relevant here that the refusal

to instruct the jury on the castle doctrine was error. The State

conceded that the instruction should have been given, as there

was “some evidence” to support it, given Brown’s testimony

that K.M. had confronted him on the driveway of his home.8

But the State argued that the error was harmless.

The Wisconsin Court of Appeals affirmed. It accepted the

State’s concession that the castle-doctrine instruction should

have been given, but it agreed with the State that the error was

8

“Wisconsin law establishes a low bar that the accused must surmount to

be entitled to a jury instruction on the privilege of self-defense. The accused

need produce only some evidence in support of the privilege of self-

defense. Evidence satisfies the some evidence quantum of evidence even if

it is weak, insufficient, inconsistent, or of doubtful credibility or slight.”

State v. Stietz, 895 N.W.2d 796, 802 (Wis. 2017) (cleaned up).

No. 21-1515 11

harmless. After canvassing the testimony, the appellate court

found that the jury would have convicted Brown even if it had

been instructed on the castle doctrine. In particular, the court

found that no reasonable jury would have believed Brown’s

version of events as to where the stabbing took place. R. 5-5.

The Wisconsin Supreme Court denied review. R. 5-8.

Brown then petitioned for a writ of habeas corpus in the

district court. Judge Crabb denied the petition. She found in

the first instance that Brown had fairly presented his due

process claim to the state appellate court. But she went on to

reason that Brown’s claim of instructional error did not rise to

the level of a constitutional violation, in that the error did not

implicate the elements of the charged offense, but rather bore

only on Brown’s defense. Even if a due process violation had

occurred, she added, the error was harmless. Brown v. Jess, 521

F. Supp. 3d 792 (W.D. Wis. 2021).

II.

In this court, Brown renews his argument that the trial

judge’s refusal to modify the self-defense instruction to

incorporate the material aspects of the castle doctrine rose to

the level of a due process violation. As we discuss in greater

detail below, Brown contends that the error in instructing the

jury as to self-defense effectively modified a key element of the

reckless-injury charge, thus violating his due process right that

the jury be properly instructed as to each element of the

charged offense. We can assume that Brown is correct in this

regard. Nonetheless, we conclude that Brown is not entitled to

a writ of habeas corpus because any such error was harmless.

12 No. 21-1515

The Antiterrorism and Effective Death Penalty Act autho-

rizes relief under 28 U.S.C. § 2254 only when the state court’s

decision on the merits of the petitioner’s claim is “contrary to,

or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

United States.” § 2254(d)(1). A state court decision is “contrary

to” Supreme Court precedent if it either did not apply the

proper legal rule or if the decision did apply the correct rule

but reached the opposite result from the Supreme Court on

materially indistinguishable facts. E.g., Warren v. Baenen, 712

F.3d 1090, 1096 (7th Cir. 2013). A state court decision amounts

to an unreasonable application of Supreme Court precedent

when it applies that precedent in a manner that is “objectively

unreasonable, not merely wrong.” Woods v. Donald, 575 U.S.

312, 316, 135 S. Ct. 1372, 1376 (2015) (per curiam) (quoting

White v. Woodall, 572 U.S. 415, 419, 134 S. Ct. 1697, 1702 (2014));

Renico v. Lett, 559 U.S. 766, 773, 130 S. Ct. 1855, 1862 (2010). By

design, this is a difficult standard to meet. Donald, 575 U.S. at

316, 135 S. Ct. at 1376. A state court’s application of Supreme

Court precedent is not objectively unreasonable simply

because we might disagree with that application, but rather

only when no reasonable jurist could agree with it. Davis v.

Ayala, 576 U.S. 257, 269–70, 135 S. Ct. 2187, 2199 (2015); Donald,

575 U.S. at 316, 135 S. Ct. at 1376; Williams v. Taylor, 529 U.S.

362, 409–11, 120 S. Ct. 1495, 1521–22 (2000).

We must first consider whether Brown fairly presented his

due process claim to the Wisconsin appellate court. Before

seeking relief in federal court, a habeas petitioner must first

give the State the opportunity to address and correct any

alleged violation of his federal rights, which means that he

No. 21-1515 13

must fairly present his federal claim through one complete

round of review in state court, “thereby alerting that court to

the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27,

29, 124 S. Ct. 1347, 1349 (2004); see also Duncan v. Walker, 533

U.S. 167, 178–79, 121 S. Ct. 2120, 2127–28 (2001); O’Sullivan v.

Boerckel, 526 U.S. 838, 844–45, 119 S. Ct. 1728, 1732–33 (1999);

Whatley v. Zatecky, 833 F.3d 762, 770–71 (7th Cir. 2016). The

following factors are relevant to the determination of whether

the petitioner has fairly presented his federal claim to the state

court: (1) whether the petitioner relied on federal cases that

engage in a constitutional analysis; (2) whether the petitioner

relied on state cases which apply a constitutional analysis to

similar facts; (3) whether the petitioner framed the claim in

terms so particular as to call to mind a specific constitutional

right; and (4) whether the petitioner alleged a pattern of facts

that is well within the mainstream of constitutional litigation.

Id. at 771. “All four factors need not be present to avoid default

[of the federal claim], and conversely, a single factor alone does

not automatically avoid default. We must consider the specific

circumstances of each case.” Id. (citations omitted).

The instructional error that occurred in this case was, in the

first instance, one of state law. Wisconsin has adopted certain

principles that govern a standard claim of self-defense, and

more recently it has also adopted the castle doctrine, which

modifies those principles in cases where an individual is in his

dwelling confronting an intruder. Errors of state law in and of

themselves are not redressable in habeas corpus, Estelle v.

McGuire, 502 U.S. 62, 67–68, 112 S. Ct. 475, 480 (1991); Perruquet

v. Briley, 390 F.3d 505, 511 (7th Cir. 2004), and this includes

state-law instructional errors in non-capital cases, Gilmore v.

14 No. 21-1515

Taylor, 508 U.S. 333, 342, 113 S. Ct. 2112, 2117–18 (1993); Estelle,

502 U.S. at 71–72, 112 S. Ct. at 481–82; Czech v. Melvin, 904 F.3d

570, 574 (7th Cir. 2018); Burris v. Smith, 819 F.3d 1037, 1042 (7th

Cir. 2016).9

However, “the Due Process Clause [of the Fourteenth

Amendment] protects the accused against conviction except

upon proof beyond a reasonable doubt of every fact necessary

to constitute the crime of which he is charged.” In re Winship,

397 U.S. 358, 364, 90 S. Ct. 1068, 1073 (1970). Thus, instructions

that reduce or shift the State’s burden of proof or wholly omit

an essential element of the charged offense could give rise to a

due process violation. See Waddington v. Sarausad, 555 U.S. 179,

190–91, 129 S. Ct. 823, 831–32 (2009); Cupp v. Naughten, 414 U.S.

141, 146–48, 94 S. Ct. 396, 400–01 (1973); Sanders v. Cotton, 398

F.3d 572, 581–82 (7th Cir. 2005); Cole v. Young, 817 F.2d 412, 423

(7th Cir. 1987).

Brown was convicted of reckless injury. See Wis. Stat.

§ 940.23(1)(a). The offense of first-degree reckless injury

requires the State to prove that: (1) the defendant caused great

bodily harm to a human being; (2) by criminally reckless

conduct; and (3) under circumstances which show utter

disregard for human life. United States v. McDonald, 592 F.3d

9

“All 50 States … recognize self-defense as a defense to criminal prosecu-

tion, … [but] the States have always diverged on how exactly to implement

this interest, so there is wide variety across the Nation in the types and

amounts of force that may be used, the necessity of retreat, the rights of

aggressors, the availability of the ‘castle doctrine,’ and so forth.” McDonald

v. City of Chicago, Ill., 561 U.S. 742, 888 n.32, 130 S. Ct. 3020, 3106 n.32 (2010)

(Stevens, J., dissenting) (citations omitted).

No. 21-1515 15

808, 811 (7th Cir. 2010) (citing State v. Jensen, 613 N.W.2d 170,

173 n.2 (Wis. 2000)); State v. Kloss, 925 N.W.2d 563, 567 (Wis. Ct.

App. 2019), review dismissed as improvidently granted, 939

N.W.2d 564 (Wis. 2020). Conduct is defined as “criminally

reckless” when “the actor creates an unreasonable and substan-

tial risk of death or great bodily harm to another human being

and the actor is aware of that risk.” Wis. Stat § 939.24(1).

Wisconsin’s self-defense privilege permits “[a] person … to

threaten or intentionally use force against another for the

purpose of preventing what the person reasonably believes to

be an unlawful interference with his person or her person by

such other person.” Wis. Stat. § 939.48(4)(1). But he may only

use such force (or threaten to use such force) as he reasonably

believes is necessary to prevent or end the interference with his

person. Id. “The actor may not intentionally use force which is

intended or likely to cause death or great bodily harm unless

the actor reasonably believes that such force is necessary to

prevent imminent death or great bodily harm to himself or

herself.” Id.

As a general matter, self-defense is regarded as an affirma-

tive defense in Wisconsin law, in that it supplies a defense to

the charged crime even where the State has otherwise suc-

ceeded in establishing each of the elements of that crime

beyond a reasonable doubt. See State v. Austin, 836 N.W.2d 833,

837 (Wis. Ct. App. 2013). With an intentional crime such as

murder, for an example, a jury might find that the defendant

meant to cause the death of another person but at the same

time find that he reasonably used lethal force against that

person in defense of his own life. See State v. Watkins, 647

16 No. 21-1515

N.W.2d 244, 253 (Wis. 2002); Wis. Crim. Jury Instr. 801 n.1

(2021) (“in cases involving the intentional causing of harm …

intent to cause harm and self-defense can exist at the same

time”). In this way, self-defense does not negate any element

of the charged offense but rather justifies or excuses the

defendant’s conduct as a legal matter. See Smith v. United States,

568 U.S. 106, 110, 133 S. Ct. 714, 719 (2013).

However, with respect to an offense like first-degree

reckless injury, which is premised on a mens rea of reckless-

ness, a successful assertion of self-defense does serve to negate

an element of the crime, rendering self-defense a negative

defense rather than an affirmative defense. Austin, 836 N.W.2d

at 837–38 & n.6. Because the “criminally reckless conduct”

element of reckless injury requires proof that the defendant has

created an “unreasonable and substantial risk of death or great

bodily harm to another person,” § 939.24(1) (emphasis ours),

proof that the defendant reasonably believed that the other

person posed a risk of death or great bodily harm to himself

and that the use of force was necessary to eliminate that risk

will necessarily preclude a finding that the defendant’s use of

force was unreasonable and criminally reckless. See id.; Wis.

Crim. Jury Instr. 801 n.1 (“A risk is not unreasonable if the

conduct undertaken is a reasonable exercise of the privilege of

self-defense.”).

Once a defendant establishes the existence of a statutory

affirmative defense (including self-defense), see n.8, supra,

Wisconsin law, independent of federal due process require-

ments, imposes on the State the burden of disproving the

defense beyond a reasonable doubt. Moes v. State, 284 N.W.2d

No. 21-1515 17

66, 69–71 (Wis. 1979); State v. Schleusner, 454 N.W.2d 51, 54

(Wis. Ct. App. 1990); see also State v. Kizer, 976 N.W.2d 356, 360

(Wis. 2022); State v. Stoehr, 396 N.W.2d 177, 188 (Wis. 1986). In

cases where the defense operates as a negative defense, as it

does here, the State of course retains that burden of proof. See

Austin, 836 N.W.2d at 837–38; see also State v. Pettit, 492 N.W.2d

633, 640 (Wis. Ct. App. 1992) (where defendant successfully

asserts negative defense, “the burden is upon the state to prove

beyond a reasonable doubt that defendant’s evidence did not

negate an element necessary to convict”). But because the

defense in such cases serves to negate one or more elements of

the charged crime, an error in describing the State’s burden of

proof with respect to a negative defense or in articulating the

elements of the defense may well implicate the defendant’s due

process rights. See State v. Schultz, 307 N.W.2d 151, 156 (Wis.

1981) (if asserted defense challenges an element of the charged

crime, “the state bears the burden of proving this element

beyond a reasonable doubt” and in the face of negative

defense, “the burden of persuasion cannot be placed upon the

defendant without violating his right to due process of law”);

State v. McGee, 698 N.W.2d 850, 856 (Wis. Ct. App. 2005) (“It

would be a violation of due process to place the burden of

persuasion on a defendant who would be asserting a negative

defense, that is, a defense that negates a fact that the State must

prove.”); Engle v. Isaac, 456 U.S. 107, 121–22, 102 S. Ct. 1558,

1568–69 (1982) (acknowledging that, to the extent self-defense

negates one or more elements of the charged offense, such that

State must disprove the defense as part of establishing defen-

dant’s guilt on those offense elements, jury instructions that

18 No. 21-1515

improperly assign burden of proving self-defense to the

defendant would present “a colorable constitutional claim”).

As we have noted, Brown’s theory is that the trial court’s

refusal to give a self-defense instruction incorporating the

castle doctrine improperly modified the criminally reckless

conduct element of the offense. Recall that the standard self-

defense instruction, which the trial court in this case adopted,

permits the jury, in assessing the reasonableness of the defen-

dant’s use of force, to consider whether he could have pro-

tected himself by retreating. By contrast, the castle doctrine

removes the possibility of retreat from the jury’s consideration.

The castle doctrine also grants the defendant the benefit of a

(rebuttable) presumption that he reasonably believed that his

use of force in defending himself was reasonable. And as we

have just explained, the jury’s assessment of self-defense will

inform its finding as to the second element of the reckless-

injury offense—whether the defendant engaged in criminally

reckless conduct. See Austin, 836 N.W.2d at 837–38. Brown thus

reasons that the failure to instruct the jury consistently with the

castle doctrine tainted not only the jury’s consideration of self-

defense but also its consideration of a key element of the

charged offense. We shall elaborate on this point in a moment;

first, we must address the question of fair presentment.

We agree with the district court that Brown fairly presented

this due process claim to the Wisconsin courts. Although his

principal brief to the Wisconsin Court of Appeals largely

argued that the jury instruction on self-defense was erroneous

as a matter of state law, the brief also noted that “[a] failure to

properly instruct the jury in such circumstances [when the

evidence supports the instruction] … violates the federal due

No. 21-1515 19

process right not to be convicted ‘except on proof beyond a

reasonable doubt of every fact necessary to constitute the

[charged] crime.’” R. 5-2 at 19. In support of that principle, the

brief not only quoted from the Supreme Court’s decision in

Winship but cited this court’s decision in Sanders v. Cotton,

supra, 398 F.3d at 582–83, which granted habeas relief in an

Indiana murder prosecution for a due process violation, based

on the trial court’s failure to instruct the jury that once the

defendant asserted that he had acted in sudden heat, the State

bore the burden of proving beyond a reasonable doubt that the

defendant did not kill the victim in sudden heat, which as a

matter of Indiana law distinguished voluntary manslaughter

from murder. It would therefore have been clear to the

Wisconsin court that, in Brown’s view, the instructional error

rose to the level of due process violation. It is true, as the State

points out, that Brown did not specifically explain how the

omission of the castle doctrine language from the self-defense

instruction effectively modified the “criminally reckless

conduct” element of the reckless-injury offense. But the brief

certainly did make the point that the self-defense instruction as

given improperly allowed the jury to consider the opportunity

to retreat in assessing the reasonableness of his actions, and

having expressly raised his due process right to have the jury

properly instructed on each element of the offense, the state

court would have been on notice that the flaw in the self-

defense instruction might have influenced the jury’s assess-

ment of the “criminally reckless conduct” element of the

offense. Brown did enough to alert the state court to the basis

for his constitutional claim.

20 No. 21-1515

We can also assume, without deciding, that the instruc-

tional error rose to the level of a due process violation. As the

State points out, the Supreme Court has drawn a distinction

between instructional errors regarding the elements of the

charged offense and errors that concern only an affirmative

defense, and it has been reticent to characterize the latter

category of errors as presenting a due process problem. See

Gilmore, 508 U.S. at 343, 113 S. Ct. at 2118 (Winship’s due

process guarantee does not apply to instructions that merely

present risk jury will not consider evidence bearing on affirma-

tive defense); Engle, 456 U.S. at 120–21, 102 S. Ct. at 1567–68

(State may assume burden of disproving affirmative defense

without also making disproof or absence of the defense an

element of the crime; and unless state law otherwise treats

absence of affirmative defense as an element of the charged

offense, error in instructing jury as to the defense may only

establish violation of state law rather than a violation of

Constitution); Patterson v. N.Y., 432 U.S. 197, 210, 97 S. Ct. 2319,

2327 (1977) (where affirmative defense does not negate any

element of charged crime, Due Process Clause does not compel

State to disprove its existence beyond reasonable doubt, and

jury instruction placing burden on defendant to establish

defense by preponderance of evidence does not pose constitu-

tional problem: “Proof of the non-existence of all affirmative

defenses has never been constitutionally required; and we

perceive no reason to fashion such a rule in this case and apply

it to the statutory defense at issue here.”). It also warrants

mention that the jury in this case was properly advised,

consistent with Wisconsin law, that the burden was on the

State to establish beyond a reasonable doubt not only the

No. 21-1515 21

elements of the charged reckless-injury offense, but also that

Brown did not act in self-defense when he injured K.M. See

Engle, 456 U.S. at 121–22, 102 S. Ct. at 1568–69.

Still, there are reasons to believe the failure to instruct the

jury in accord with Wisconsin’s castle doctrine did implicate

his due process rights.10 As we have discussed, with respect to

the charged reckless-injury offense, self-defense operates to

negate an element of that offense: if the defendant’s use of

force to defend himself was reasonable, then his conduct could

not have been criminally reckless. To this extent, the absence or

disproof of self-defense could be equated with an element of

the reckless-injury offense. See Wis. Crim. Jury Instr. 801 n.1 (in

recklessness cases, “the absence of the privilege [of self-

defense] is identified as a fact the state must prove in addition

to the statutorily defined elements of the intentional crime”);

Austin, 836 N.W.2d at 838 (where pattern self-defense instruc-

tion advised jury that it should consider evidence related to

self-defense in deciding whether defendant’s conduct created

an unreasonable risk to another but also implied that defen-

dant must satisfy jury that he was acting in self-defense,

instruction improperly removed burden of proof from State to

show that defendant was engaged in criminally reckless

conduct). As Brown sees it, the trial court, by refusing to

modify the self-defense instruction in accordance with the

castle doctrine, expressly and erroneously allowed the jury to

10

As noted, the Wisconsin Court of Appeals itself did not consider

whether the instructional error constituted a violation of Brown’s due

process rights. Rather, it accepted the State’s confession that the instruction

was contrary to Wisconsin law but concluded that the error was harmless.

22 No. 21-1515

consider whether Brown could have retreated, and in so doing

modified not only what the jury could consider reasonable in

assessing his use of force in self-defense, but also what it could

consider unreasonable in assessing whether Brown’s conduct

was criminally reckless as charged. In the latter regard, Brown

argues that the jury instruction re-defined an element of the

charged offense in a way that lightened the State’s burden of

proof and hampered his own claim of self-defense. Put

concretely, the instruction as given permitted the jury to

convict Brown on a ground that the castle doctrine fore-

closed—that he could have retreated from the confrontation

with K.M. but did not—and thus that his use of force in self-

defense was not reasonable but rather amounted to criminally

reckless conduct.11

But we are nonetheless satisfied that any such due process

violation was harmless. The Wisconsin Court of Appeals

reached the same conclusion on direct review of Brown’s

conviction, concluding “beyond a reasonable doubt that a

rational jury would have come to the same conclusion absent

the [instructional] error.” R. 5-5 at 12 (quoting Seitz, 895

N.W.2d at 808). The state court in so holding applied the

prejudice inquiry for constitutional errors articulated by

Chapman v. California, 386 U.S. 18, 87 S. Ct. 824 (1967), for cases

11

Brown’s focus in making this argument is on the aspect of the castle

doctrine that precludes consideration of retreat rather than the presumption

that he reasonably believed his use of force was necessary to protect

himself. That presumption assists a defendant, to be sure, but it arguably

does not impact the definition of an element of the charged offense in the

way that foreclosing the factfinder’s consideration of a particular circum-

stance (here, the possibility of retreat) does.

No. 21-1515 23

on direct review. See Seitz, 895 N.W.2d at 808 n.21. It thus falls

to us under the AEDPA to consider whether the state court’s

application of Chapman was reasonable. § 2254(d)(1); see Brown

v. Davenport, 142 S. Ct. 1510, 1525 (2022); Fry v. Pliler, 551 U.S.

112, 119, 127 S. Ct. 2321, 2326 (2007) (citing Mitchell v. Esparza,

540 U.S. 12, 124 S. Ct. 7 (2004) (per curiam)). But in order to

prevail on his habeas petition, it is not enough for Brown to

show the Wisconsin Court of Appeals unreasonably applied

Chapman in assessing whether the instructional error preju-

diced him; separately, he must also show that the instructional

error had a “substantial and injurious effect or influence” on

the jury’s verdict under Brecht v. Abrahamson, 507 U.S. 619,

637–38, 113 S. Ct. 1710, 1722 (1993), which specifies the stan-

dard that a federal habeas court must apply in assessing the

prejudicial impact of a constitutional error in a state-court

criminal proceeding. See Brown, 142 S. Ct. at 1524. As the

Supreme Court’s recent decision in Brown makes clear, these

are analytically distinct inquiries, and if the petitioner fails to

make either showing, then his request for relief must be

denied. Id. Thus, if Brown does not succeed in convincing us

that he was prejudiced by the flaw in the self-defense jury

instruction in accord with Brecht, that conclusion obviates the

need to separately consider whether the state court’s applica-

tion of Chapman was unreasonable under the AEDPA. Id. at

1528.

Brecht directs us to consider whether the error “had

substantial or injurious effect or influence in determining the

jury’s verdict.” Brecht, 507 U.S. at 637, 113 S. Ct. at 1722

(quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct.

1239, 1253 (1946)); see also Ayala, 576 U.S. at 267–68, 135 S. Ct.

24 No. 21-1515

at 2197–98; Fry, 551 U.S. at 121–22, 127 S. Ct. at 2328. And in

contrast to Chapman’s prejudice inquiry, as to which the State

bears the burden of persuasion, see Brown, 142 S. Ct. at 1523, it

is the habeas petitioner who bears the burden of demonstrating

that the error had such an effect or influence, see Brecht, 507

U.S. at 637, 113 S Ct. at 1722; Brown, 142 S. Ct. at 1523.

There must be more than a reasonable probability

that the error was harmful. The Brecht standard

reflects the view that a State is not to be put to the

arduous task of retrying a defendant based on

mere speculation that the defendant was preju-

diced by trial error; the court must find that the

defendant was actually prejudiced by the error.

Ayala, 576 U.S. at 268, 135 S. Ct. at 2198 (cleaned up). Ulti-

mately, a court may grant habeas relief only if it is in “grave

doubt” as to whether the federal error had a substantial or

injurious effect in determining the jury’s verdict. Id. at 267–68,

135 S. Ct. at 2197–98.

Initially, Brown suggests that we should apply Chapman

here, such that the burden is on the State to show beyond a

reasonable doubt that the instructional error did not influence

the verdict; but he is wrong in this assertion. He relies on Neder

v. United States, 527 U.S. 1, 119 S. Ct. 1827 (1999), which applied

Chapman in determining whether, in a federal criminal prose-

cution, a jury instruction that erroneously omitted an element

of the offense was harmless. Thus, the Court asked, “Is it clear

beyond a reasonable doubt that a rational jury would have

found the defendant guilty absent the error?” Id. at 18, 119

S. Ct. at 1838. But the Chapman standard for harmlessness

No. 21-1515 25

governs cases, like Neder, that are on direct review. In a habeas

case, it is Brecht rather than Chapman that governs. Brown, 142

S. Ct. at 1523–24; Wilber v. Hepp, 16 F.4th 1232, 1247 (7th Cir.

2021), cert. denied, 142 S. Ct. 1443 (2022).

Brown has placed a great deal of emphasis on the notion

that the instructional error permitted the jury to consider

whether he had the opportunity to retreat into his home. But

as Judge Crabb pointed out below, even if the jury had been

properly instructed in accordance with the castle doctrine, the

jury would still have been free to consider the possibility of

retreat unless it accepted Brown’s account that K.M. charged up

the driveway at him. 521 F. Supp. 3d at 801–02. Yet, the jury

could readily have rejected his version of events and credited

the testimony of other witnesses that Brown confronted K.M.

in the street. Id. Brown’s counsel has done a respectable job of

marshaling every possible argument in favor of his factual case

and against the State’s case on this point. But like the district

judge, we are not persuaded that a properly instructed jury

would have accepted his factual account of the key events

culminating in the stabbing.

Multiple witnesses, including Brown himself, agreed that

K.M. had been walked to his car on the street after the initial

scuffle between the two men. At that point in time, there was

no real threat to Brown.

Only Brown testified that K.M. subsequently charged up

the driveway. K.M.’s wife, Rebecca, directly contradicted

Brown on this point, testifying that Brown walked down the

driveway and confronted K.M. in the street. Kelan Phillips

likewise told police that Brown walked to where K.M. was

26 No. 21-1515

standing in the street and it was there that he struck K.M.

down.12

It is true that Cynthia Harms testified she witnessed (heard

more than saw) a scuffle next to the Mustang parked in the

driveway, at which point she left her upstairs window to

retrieve her phone and call 911, and upon returning to the

window saw K.M. at the bottom of driveway, where he

stepped toward, and then fell in front of, his nearby car.

Harms’ testimony was, as the state appellate court character-

ized it, “ambiguous.” R. 5-5 at 10. Harms testified that at no

point in her observations from the window did she see Brown.

Brown appears to infer from the fact that Harms saw K.M.

standing at the bottom of the driveway and collapsing as he

moved toward his car, but did not see Brown himself, that her

account supports the notion that the stabbing must have taken

place on the driveway and that K.M. walked back to the street

after being stabbed. But Harms also denied seeing any fighting

12

Brown notes that Phillips’ statements to the police were out-of-court

statements that would ordinarily be regarded as hearsay. The trial court

allowed the State to elicit these statements after Phillips professed an

inability to recall what he had observed on the night when Brown stabbed

K.M. and what he had told the officers who interviewed him. In such

circumstances, Wisconsin law allows a witness’s out-of-court statements to

the police to be admitted as substantive evidence as well as for impeach-

ment. Wis. Stat. § 908.01(4)(a)(1); Vogel v. State, 291 N.W.2d 838, 844–45

(Wis. 1980). Brown argues that out-of-court statements are unreliable and

should be discounted as a general matter, but he identifies no reason why

Phillips’ statements to the police should be discounted. Phillips was an

eyewitness to the stabbing, and he made consistent statements to two

different officers who interviewed him in the hours immediately after the

incident.

No. 21-1515 27

take place in Brown’s driveway, adding that she did not

observe anything that had occurred between the initial scuffle

she heard next to the Mustang parked in the driveway and the

point at which she returned to the window and saw K.M. at the

foot of the driveway.13 Harms’ testimony at best lends only

minimal and indirect support to Brown’s version of events.14

Importantly, the physical evidence at the scene also did not

lend support to Brown’s account that K.M. had stormed up the

driveway and confronted him there. K.M. was stabbed not

once but three times, which one would think would have

caused immediate bleeding. (Brown’s own arm wound,

sustained in the initial scuffle, resulted in blood droplets and

stains found in multiple locations: on the garage floor, on the

Cadillac sedan parked in the driveway, and on a bottle of

13

Harms told the 911 dispatcher that her view of Brown’s driveway was

blocked by trees.

14

To be frank, it is not entirely clear from Harms’ testimony which specific

points in the chain of events leading up to the stabbing that she observed.

When Harms first looked out her window, because she could not see who

was involved in the scuffle next to the Mustang (she only saw shadows), she

could have been witnessing the effort of Rebecca and other guests to

separate K.M. from Brown and get him out to the car, as opposed to the

initial tussle between Brown and K.M. in the garage. When Harms

subsequently returned to the window after calling the 911 dispatcher and

saw K.M. at the foot of the driveway, where he fell to the ground as he

moved toward his car, she was presumably observing K.M. after Brown

stabbed him in the head, but if so it is puzzling why, at the same time, she

saw Rebecca standing in the driveway and heard her yelling at K.M. to get

into the car, which by all accounts is what she was urging K.M. to do prior

to the stabbing rather than after.

28 No. 21-1515

lighter fluid that Brown threw at K.M.) Yet, not so much as a

drop of K.M.’s blood was found on the driveway; instead,

there was a large pool of blood in the street in front of the

driveway, with a streamlet of blood running from that pool

along the gutter. (Rebecca testified that she had wrapped an

undershirt around the knife in an effort to stanch the bleeding

from K.M.’s head wound.) The prosecution reasonably argued

to the jury that there would have been blood on the driveway

if Brown’s account were true.

Moreover, by the account of multiple witnesses, including

Harms, Brown made threatening statements even after K.M.

had collapsed in the street with the knife in his head, including

“He’s not dead yet, but I’ll kill him,” and, to Rebecca, “I’ve got

one for you too, bitch.” Brown acknowledged having made

such statements in his testimony. These are statements that are

inconsistent with the notion that Brown had been in fear for his

safety and had struck K.M. in self-defense.

Brown suggests it is implausible that the jury credited the

State’s version of the events leading up to the stab-

bing—Rebecca’s account in particular—given its decision to

acquit him on the attempted homicide charge. The Wisconsin

Court of Appeals addressed this point and rejected his inter-

pretation of the acquittal: “[T]he more likely explanation is that

the jury did not find beyond [a] reasonable doubt that Brown

acted with the necessary intent to kill the victim.” R. 5-5 at 11.

Brown faults the court’s reasoning in this regard. As he sees it,

had the jury credited Rebecca’s account that he was the

aggressor, that he went into his house to retrieve a knife, and

that he then traversed the length of the driveway and physi-

cally accosted K.M. with the knife in the street, then the jury

No. 21-1515 29

surely would have found that he intended to kill K.M. The jury

instead must have concluded that K.M. was the aggressor, that

K.M. confronted Brown in the driveway, and that Brown

struck K.M. with the knife in self-defense. The jury would have

acquitted him on the reckless-injury charge also, Brown

reasons, but for the instructional error that permitted the jury

to consider the possibility of retreat in assessing the reasonable-

ness of the actions he took to defend himself.

But we discern nothing irrational about the Wisconsin

appellate court’s observation as to the acquittal on the at-

tempted homicide charge. Any attempt to explain why a jury

acquitted the defendant on one charge but convicted him on

another is a necessarily speculative enterprise. See United States

v. Powell, 469 U.S. 57, 66–67, 105 S. Ct. 471, 477–78 (1984);

United States v. Askew, 403 F.3d 496, 501 (7th Cir. 2005); United

States v. McGee, 189 F.3d 626, 630 (7th Cir. 1999); United States

v. Nobles, 69 F.3d 172, 188–89 (7th Cir. 1995). We certainly can

assume that the jury, on a favorable view of the State’s wit-

nesses, could have convicted Brown on the attempted homicide

charge, but we do not agree with Brown that the decision to

acquit him on that charge necessarily or even likely means that

the jury credited his own account of events and determined

that K.M. was the aggressor and that he charged up at Brown

in the driveway, thus compelling Brown to defend himself. As

the state court noted, the attempted homicide charge required

a significantly more culpable mens rea than the reckless-injury

charge: an intent to kill versus an awareness that one’s acts

posed a risk of death or grave bodily harm to the victim. When

presented with the not altogether uncommon scenario of a late-

night, drunken brawl between aggrieved family members, the

30 No. 21-1515

jury might well have concluded that reckless injury was a

better fit for the facts in this case than attempted first degree

intentional homicide. Brown’s decision to introduce a knife

into his dispute with K.M. without question increased the odds

that he might mortally wound his cousin, but the jurors were

instructed that a conviction on the attempted homicide charge

required them to find that Brown’s acts “demonstrate[d]

unequivocally” that he had formed an intent to kill K.M. R. 5-

14 at 13–14. Brown, by his own admission to Jill Phillips,

screwed up. Or as Kelan Phillips put it, Brown was a nice man

who “just made a … mistake that day.” R. 5-12 at 107. It is not

difficult to imagine the jury deciding that Brown’s words and

actions reflected an awareness that he might grievously injure

his cousin but did not “demonstrate unequivocally” that he

intended to kill K.M. Like the state court, we are not convinced

that the acquittal on the attempted homicide charge means that

the jury adopted Brown’s version of events and signals that he

might well have been acquitted on the reckless-injury charge

but for the instructional error.

Brown has also faulted the state trial judge and appellate

court for finding, in light of the evidence we have described,

that his account of events was incredible as they assessed

whether or not the omission of the castle doctrine was harm-

less under Chapman. Given that we have engaged in a de novo

review of harmlessness under Brecht, any purported faults in

the state courts’ own review for harmlessness are really beside

the point. That said, Brown is correct that credibility assess-

ments and the weighing of evidence are the province of the

factfinder, and insofar as possible, we as a habeas court must

avoid supplanting the role of a jury. See Tyson v. Trigg, 50 F.3d

No. 21-1515 31

436, 453 n.2 (7th Cir. 1995) (Flaum, J., concurring) (collecting

cases).

Nonetheless, Brecht requires that we make a probabilistic

assessment in determining whether the instructional error had

a substantial and injurious effect or influence in determining

the jury’s verdict: we must ask ourselves “whether a properly

instructed jury would have arrived at the same verdict, absent

the error.” Armfield v. Nicklaus, 985 F.3d 536, 543–44 (7th Cir.)

(quoting Czech, 904 F.3d at 577), cert. denied, 142 S. Ct. 190

(2021). And as the district court pointed out, that requires us to

consider, inter alia, the overall strength of the State’s case

against the totality of the evidence. 521 F. Supp. 3d at 801

(citing Czech, 904 F.3d at 577). In doing so, we may necessarily

touch upon questions of witness credibility and the plausibility

of the parties’ respective theories of the case. See Toney v. Peters,

48 F.3d 993, 998 (7th Cir. 1995) (collecting cases).

For all of the reasons we have set out, we harbor no grave

doubt as to whether a properly instructed jury still would have

convicted Brown. The State had a strong case against Brown

which established not only that the final physical confrontation

between him and K.M. took place in the street, off of Brown’s

property, but also, as the district court noted, that Brown was

the aggressor. 521 F. Supp. 3d at 802. No testimony other than

Brown’s supported his version of events, the physical evidence

did not corroborate his averment that the stabbing took place

in his driveway, and, as the district court emphasized, Brown’s

own words in the aftermath of the stabbing suggested that he

had stabbed K.M. in anger rather than in fear for his life. Id. at

32 No. 21-1515

803. In short, Brown has not shown that he was actually

prejudiced by the trial court’s error in instructing the jury.

III.

For the foregoing reasons, we AFFIRM the judgment.