Jerry Wilson v. Dan Cromwell

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 21‐1402

JERRY S. WILSON,

Petitioner‐Appellant,

v.

DAN CROMWELL,

Respondent‐Appellee.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 2:13‐cv‐01061 — Nancy Joseph, Magistrate Judge.

____________________

ARGUED SEPTEMBER 7, 2022 — DECIDED JANUARY 23, 2023

____________________

Before SYKES, Chief Judge, and HAMILTON and BRENNAN,

Circuit Judges.

BRENNAN, Circuit Judge. Melvin Williams was shot and

killed on May 23, 2009, and two other men—Robert Taylor

and Romero Davis—were injured in the same shooting. A

Wisconsin jury found beyond a reasonable doubt that Jerry

Wilson was the gunman. He appeals from the district court’s

denial of his habeas petition under 28 U.S.C. § 2254, claiming

2 No. 21‐1402

that he received constitutionally ineffective assistance from

his trial and postconviction counsel.

We do not reach the merits of Wilson’s claims because both

are procedurally defaulted. Wisconsin state courts disposed

of Wilson’s ineffective assistance of trial counsel claim on ad‐

equate and independent state procedural grounds. And

Wilson failed to present his ineffective assistance of postcon‐

viction counsel claim for one complete round of state court

review. The default of these claims is not excused by a suffi‐

cient showing of actual innocence, barring federal review of

the merits. Accordingly, we affirm the district court’s denial

of habeas relief.

I

The Shooting, Investigation, and Charges. In the early morn‐

ing hours of May 23, 2009, three people were shot during an

“after‐set” party1 at a two‐story duplex unit on North 44th

Street in Milwaukee. The party was large enough that at‐

tendees were both inside the duplex and outside in the street.

Just before gunfire began, two vehicles passed through the

crowded street in front of the duplex, and the cars’ occupants

exchanged insults with party attendees in the roadway. The

drivers parked nearby, and the passengers—who included

the three eventual victims—walked back to the party to find

the people who had yelled at them. A fistfight broke out in the

street, and then the shooting started.

Melvin Williams suffered a fatal gunshot wound to the

chest and died that day. The two other victims survived. A

1 According to witnesses at trial, an after‐set party is like a house party

or block party, where guests pay an admission fee and alcohol is served.

No. 21‐1402 3

bullet struck Robert Taylor in the foot, and Romero Davis re‐

ceived wounds to his stomach and right calf. Neither Taylor

nor Davis could identify who shot them.

Investigation of the crime scene yielded only a modest

amount of physical evidence. Law enforcement recovered five

.40 caliber bullet casings, four .38 caliber casings, a .40 caliber

bullet, and several bullet fragments at the scene but never lo‐

cated the murder weapon. In general, the .38 caliber casings

were damaged and flattened while the .40 caliber casings

were in better condition.

Police spoke with eyewitnesses early in the investigation.

Shakira King attended the after‐set party and identified

Wilson as the gunman to law enforcement. She also picked

Wilson out of a photo lineup. Antwan Smith‐Currin, who

lived in the upstairs duplex unit at the time, also identified

Wilson as the gunman in a photo array.

According to detective testimony, Samantha Coats and

Sanntanna Ross identified Wilson as the shooter as well, alt‐

hough at trial the women either denied having made such

identification or sharply qualified their prior statements. Of‐

ficers arrested Wilson in July 2009, and the State charged him

with one count of reckless homicide and two counts of reck‐

less endangerment.

Smith‐Currin testified at Wilson’s preliminary hearing

and identified him as the gunman. When asked whether he

saw other gunmen besides Wilson, Smith‐Currin answered,

“No, sir,” but acknowledged that “People w[ere] trying to say

4 No. 21‐1402

that I was shooting because I was on the porch.”2 At the hear‐

ing, the trial court found probable cause to believe that Wilson

committed a felony and ordered him bound over for trial.

Jury Trial. In August 2010, Wilson went to trial with attor‐

ney Glen Kulkoski as his counsel. Given the minimal physical

evidence, the case centered on the testimony of four eyewit‐

nesses. Smith‐Currin took the stand and identified Wilson as

the gunman, consistent with his previous statements to law

enforcement. He testified to seeing Wilson walk between two

houses, approach the crowd in the street, and open fire with

a handgun. Yet Smith‐Currin’s testimony contained discrep‐

ancies. For instance, he testified to standing on the porch

when he saw Wilson open fire, but he was cross‐examined

with his prior sworn statement that he had been in the street

when he saw the shooting.

King also testified at trial and identified Wilson as the

shooter. King’s account largely mirrored Smith‐Currin’s: Wil‐

son emerged from between two houses on the same side as

the duplex and opened fire. But King also provided certain

discrepant details. For example, she was neither consistent in

describing her position relative to the gunman, nor certain of

the distance between them. At trial, she first suggested that

she was two feet from the gunman. But following a courtroom

distance demonstration, she changed that estimate to fifteen

feet. She also said that the shooter had a ponytail but had pre‐

viously told police that he wore his hair in braids. Finally,

King testified she was not involved in the street fight, but pre‐

viously told officers that she had participated.

2 The two‐story duplex has an upper and a lower porch. Smith‐Currin

testified at trial that he was on the lower porch at the time of the shooting.

No. 21‐1402 5

The State also called two other eyewitnesses to testify.

Sanntanna Ross said she did not see who shot because she was

fighting in the street during the shooting. That prompted the

State to try to impeach her with her prior statements to law

enforcement inculpating Wilson. Per testimony from investi‐

gating detectives, Ross identified Wilson as the shooter and

recognized his face in a photograph. In response to the im‐

peachment evidence, Ross claimed she felt pressure from po‐

lice to “get [her] to say things that [she] didn’t want to say.”

Samantha Coats testified that, in the seconds before the

shooting, she was looking out of a nearby second‐story win‐

dow with a view of the street. She described seeing an indi‐

vidual come into the street near the duplex and start shooting.

When asked at trial, she agreed that the gunman’s silhouette

fit Wilson’s description, but she did not make an affirmative

identification. As with Ross, the State tried to impeach Coats

with prior statements. According to police documents and

testimony, Coats selected Wilson’s photograph during a

photo lineup, indicated he was the shooter, and wrote “I’m

sure is the shooter” on the photo lineup paper near her signa‐

ture. In response, Coats explained she was “under a lot of

pressure” from law enforcement and believed that she “was

going to be taken into custody.” Coats likewise agreed with

defense counsel that her statements to police were made to

please the detectives and to avoid getting herself in trouble.

The State called other witnesses to talk about the physical

evidence. Detectives described where they found the different

bullet casings and explained that the location of the .40 caliber

casings was generally consistent with a gunman firing from

an alleyway near the duplex. A firearm examiner opined that

6 No. 21‐1402

the .38 caliber casings were all fired out of one gun while the

.40 casings were all fired from a second weapon.

After the State rested, Wilson called three witnesses in his

defense. Kawana Robinson, Aaron Lee, and Shantell Johnson

all testified that they did not see Wilson at the after‐set party

the night of the shooting.

All in, the accounts of the trial witnesses varied. For in‐

stance, the shooter’s height was described as five‐foot‐three

by one witness, and five‐foot‐eleven by another. One witness

said the shooter was wearing a fleece‐style top with no hood,

while others testified he was either wearing a baseball hat or

had a hood up. There was also disagreement about whether

the shooter wore his hair in a ponytail or in braids. Finally, at

least two witnesses claimed it was too dark to discern any de‐

tails about the gunman.

The jury found Wilson guilty on all three counts, and the

court sentenced him to 28 years’ imprisonment.

Wilson’s § 974.02 Proceedings and Possible New Evidence.

Post‐judgment, two events unfolded simultaneously. In the

fall of 2010, Wilson obtained postconviction counsel (Thomas

Simon)3 and challenged his conviction. Wilson began by pur‐

suing a claim for ineffective assistance of trial counsel which,

in Wisconsin, is brought as a § 974.02 motion in the trial court.

See WIS. STAT. §§ 809.30, 974.02; Lee‐Kendrick v. Eckstein, 38

F.4th 581, 586 (7th Cir. 2022). Wilson filed that motion in April

3 Throughout we refer to Thomas Simon, who assisted Wilson during

his § 974.02 proceeding, as Wilson’s “postconviction counsel.” “Postcon‐

viction counsel” refers exclusively to Simon and should not be confused

with Christopher August, who assisted Wilson with his § 974.06 state col‐

lateral attack, or with Wilson’s current federal habeas counsel.

No. 21‐1402 7

2011, arguing that trial counsel had failed to properly investi‐

gate the case, raise a key defense, and thoroughly cross‐exam‐

ine a State witness.

Also during the fall of 2010, Wilson had been investigating

new evidence. He alleges that three to four months after the

trial concluded, he became aware of a new eyewitness

through a fellow inmate named Deangelo Harvey. In late

2010, Harvey purportedly told Wilson that a woman living in

the duplex was home on the night of the shooting, but he did

not provide a name or any other specifics. Nonetheless, Wil‐

son claims he eventually received a letter from that woman—

Lakisha Wallace—sometime between March and June of 2011.

Per Wilson, Wallace explained in her letter that she had “in‐

formation about what happened that night” but provided no

other details. Wilson said he wrote back asking if she would

testify on his behalf and requesting her contact information.

In a third letter, Wallace allegedly agreed and provided Wil‐

son a post office box number.4 Thereafter, Wilson claims that

his mother got in touch with Wallace and that Wallace spoke

with his postconviction counsel. Nonetheless, there is no evi‐

dence that Wilson’s postconviction counsel ever obtained an

affidavit from Wallace or involved her in the direct appeal.

The Wisconsin trial court denied Wilson’s § 974.02 motion

on April 18, 2011, and Wilson appealed. In 2012, the Wiscon‐

sin Court of Appeals denied relief, and the Wisconsin Su‐

preme Court declined to grant review, ending Wilson’s direct

appeal.

Wilson’s § 974.06 Proceedings. Almost a year after Wilson

lost his direct appeal, he acquired a notarized statement from

4 Wilson did not keep any of the letters nor did he make copies.

8 No. 21‐1402

Wallace—the same individual with whom he had allegedly

exchanged letters in 2011. In her July 1, 2013, statement, Wal‐

lace accused Smith‐Currin of being the shooter and said that

Wilson was innocent. Wilson then filed a pro se postconvic‐

tion motion under § 974.06 in Wisconsin state court, alleging

ineffective assistance of both trial and postconviction counsel.

He also sought a hearing on the “newly discovered” Wallace

testimonial evidence. The state trial court denied relief, and

the appellate court affirmed.

Two years later, though, Wilson’s state collateral challenge

gained new life. In September 2016, he renewed his claims by

petitioning the Wisconsin Supreme Court for review. That

court ordered the State to submit a response, in which the

State acknowledged that Wilson was entitled to an eviden‐

tiary hearing on the newly discovered evidence. As the Wis‐

consin Supreme Court summarized, the State conceded in its

response that “if the allegation at issue is accepted as true,

there is a reasonable probability that a jury, looking at the old

evidence and the new evidence, would have a reasonable

doubt as to Mr. Wilson’s guilt.” So, the Wisconsin Supreme

Court granted the petition for review and remanded on the

newly discovered evidence claim. It held in abeyance the

other claims, including Wilson’s ineffective assistance of post‐

conviction counsel claim.

In August 2017, an evidentiary hearing was held at which

Wallace testified to the information in her July 2013 statement.

She explained that, on the night of the shooting, she was liv‐

ing on the first floor of the duplex, and there was a big party

going on in the upstairs unit where Smith‐Currin lived. In the

hours leading up to the shooting, Wallace witnessed Smith‐

Currin drinking, smoking, and ingesting pills on the porch.

No. 21‐1402 9

As a result, Wallace believed that Smith‐Currin was under the

influence at the time of the shooting: “Yeah, he was very much

so under the influence. Like you could tell he was high, you

know.”

As the party ramped up, Wallace said she noticed commo‐

tion outside her unit and observed Smith‐Currin ask his

brother for a firearm. She next saw Smith‐Currin go outside

with the handgun and yell that the partygoers should move

away from the house. According to Wallace, Smith‐Currin

then ran down the front steps and opened fire on the people

in the street. During the shooting, Wallace claims to have

heard multiple weapons firing: “It wasn’t like it was just one

gun. Like you could hear different guns going off. It wasn’t

like just one person shooting outside.” Wallace testified fur‐

ther that, once the shooting stopped, Smith‐Currin tried to

come inside her unit. She refused him entry but overheard

Smith‐Currin tell his brother that he had just shot someone.

Wallace also reported hearing Smith‐Currin discuss pinning

the crime on Wilson.

Wilson took the stand next. He explained how Wallace

reached out to him after his conviction in 2011, and he de‐

scribed their alleged exchange of letters. Wilson also testified

that, in the hours before the party, he had helped set up a mu‐

sic system for Wallace at the duplex.

Yet despite having been to Wallace’s residence just hours

before the shooting, Wilson said it never occurred to him that

she might have information about the incident. Indeed, Wil‐

son never brought Wallace to trial counsel’s attention or oth‐

erwise reached out to her pretrial. Per Wilson, it was not until

Wallace wrote to him that he realized she might have helpful

information. And while Wilson claimed he notified

10 No. 21‐1402

postconviction counsel about Wallace during his direct ap‐

peal, he could not explain why his counsel failed to act on the

Wallace lead.

After the hearing, the state trial court denied Wilson’s re‐

quest for a new trial. In its oral ruling, the trial court found

that, “[g]enerally, Miss Wallace’s testimony was credible and

worthy of belief.”5 But the judge assessed Wilson’s statements

differently, explaining, “Mr. Wilson’s testimony is not credi‐

ble. It is not worthy of belief. I give his testimony zero

weight.” The court observed that Wilson had recounted re‐

ceiving letters from Wallace, yet Wallace testified she was il‐

literate. As the court explained, “Miss Wallace doesn’t have

the ability to correspond with the defendant. She can’t read.

She can’t write.” At bottom, the trial court held that Wilson

was negligent in failing to present the newly discovered evi‐

dence to the jury and thus not entitled to a new trial.

Wilson then made a strategic decision to streamline his

case. He voluntarily dismissed his petition for review (with

his ineffective assistance of postconviction counsel claim),

which the Wisconsin Supreme Court had held in abeyance, so

that he could appeal the denial of his request for a new trial

based on new evidence. Nonetheless, Wilson’s appeal of his

newly discovered evidence claim failed. The Wisconsin Court

of Appeals agreed with the trial court that Wilson was negli‐

gent in not presenting the Wallace evidence earlier and denied

relief. Soon after, the Wisconsin Supreme Court declined

5 The trial court qualified this credibility finding somewhat, explain‐

ing, “Miss Wallace does have some limitations that undermine her credi‐

bility, not enormously, but there are areas where her testimony could be

more credible.” One such issue was that Wallace “ha[d] some difficulties

in sequence of events.”

No. 21‐1402 11

review. Having lost on the newly discovered evidence claim

and having voluntarily dismissed his other claims pending in

the Wisconsin Supreme Court, the doors to state court relief

closed for Wilson.

Habeas Corpus Petition. Wilson then turned to federal court.

He had timely filed an original federal habeas petition on Sep‐

tember 20, 2013, which the district court stayed pending ex‐

haustion of state proceedings. After his state court path was

foreclosed, he amended his habeas petition on July 30, 2019,

alleging three grounds for relief: (1) ineffective assistance of

trial counsel; (2) ineffective assistance of postconviction coun‐

sel; and (3) newly discovered evidence.

The district court ruled that Wilson procedurally de‐

faulted his claim for ineffective assistance of trial counsel.

Likewise, the court decided that the default was not excused

because Wilson failed to make a sufficiently strong showing

of actual innocence. On the ineffective assistance of postcon‐

viction counsel claim, the district court did not explicitly en‐

gage with procedural default. Instead, the court found that

Wilson could not show constitutionally ineffective assistance

on the merits. Finally, the district court disposed of the newly

discovered evidence claim, finding that the discovery of new

evidence alone does not qualify as grounds for federal habeas

relief absent an independent constitutional violation. The dis‐

trict court also denied Wilson a certificate of appealability.

At Wilson’s request, we granted a certificate of appealabil‐

ity under 28 U.S.C. § 2253(c)(2) for the following issues:

 Whether Wilson has established ineffective

assistance of trial counsel;

12 No. 21‐1402

 Whether Wilson has made a strong enough

showing of actual innocence to excuse any

procedural defaults;

 Whether the federal constitutional right to

counsel applies to Wisconsin postconviction

counselʹs performance; and

 Whether, if the federal constitutional right to

counsel applies to Wisconsin post‐convic‐

tion counsel, the standard for ineffective as‐

sistance is met here.

After reviewing the petition and record, we affirm the district

court’s denial of Wilson’s petition for federal habeas relief for

the reasons that follow.6

II

As noted, the district court dismissed Wilson’s habeas pe‐

tition. “When reviewing a district court’s ruling on a habeas

corpus petition, we review the district court’s factual findings

for clear error and rulings on issues of law de novo.” Sanders v.

Radtke, 48 F.4th 502, 508 (7th Cir. 2022) (quoting Lee‐Kendrick,

38 F.4th at 585–86). As to whether a claim is procedurally de‐

faulted, our review is de novo. Garcia v. Cromwell, 28 F.4th 764,

771 (7th Cir. 2022) (citing Johnson v. Thurmer, 624 F.3d 786, 789

(7th Cir. 2010)).

6 The court thanks Vladimir J. Semendyai, Esq., Andrew P. LeGrand,

Esq., Pooja Patel, Esq., and Zachary T. Reynolds, Esq. of Gibson, Dunn &

Crutcher LLP for accepting this appointment and for their fine represen‐

tation of Wilson throughout this appeal.

No. 21‐1402 13

A

We first consider whether Wilson’s claim for ineffective as‐

sistance of trial counsel is procedurally defaulted. The State

contends it is because the state court disposed of Wilson’s

claim on an adequate and independent state law ground. Wil‐

son seems to acknowledge this but focuses instead on over‐

coming default through the actual innocence gateway. We

hold that Wilson’s claim for ineffective assistance of trial

counsel is indeed procedurally defaulted.

“[A] state prisoner must exhaust available state remedies

before presenting his claim to a federal habeas court.” Davila

v. Davis, 137 S. Ct. 2058, 2064 (2017) (citing 28 U.S.C.

§ 2254(b)(1)(A)). A “corollary” to that rule is that federal

courts may not review federal claims that the state court de‐

nied on an adequate and independent state procedural

ground. Id. So, we begin by examining the state court’s treat‐

ment of Wilson’s claim for ineffective assistance of trial coun‐

sel.

The Wisconsin Court of Appeals was the final state court

to evaluate Wilson’s ineffective assistance of trial counsel

claim, and it denied that claim as inadequately pleaded under

State v. Allen, 682 N.W.2d 433 (Wis. 2004).7 Per Wisconsin law,

a defendant claiming ineffective assistance of counsel must

plead “sufficient material facts—e.g., who, what, where,

when, why, and how—that, if true, would entitle him to the

7 The Wisconsin Supreme Court denied Wilson’s ensuing petition for

review without comment. Therefore, we look to the Wisconsin Court of

Appeals’ decision. See Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018) (holding

that federal courts on habeas review look to the “last related state‐court

decision that [ ] provide[s] a relevant rationale”).

14 No. 21‐1402

relief he seeks.” Id. at 436; see also id. at 441–42; State v. Bentley,

548 N.W.2d 50, 53–54 (Wis. 1996). State trial courts may deny

such a claim without a hearing based on a defendant’s recita‐

tion of “conclusory allegations” or failure to “raise facts suffi‐

cient to entitle the movant to relief.” Allen, 682 N.W.2d at 437;

see also Whyte v. Winkleski, 34 F.4th 617, 622 (7th Cir. 2022) (de‐

scribing the Allen pleading standard).

Applying that standard, the Wisconsin Court of Appeals

determined that Wilson’s ineffective assistance of counsel

claim was insufficiently pleaded under Allen: “Despite a

lengthy recitation of the standards set forth in Bentley and Al‐

len for a sufficient postconviction motion, Wilson fails to make

sufficient allegations to warrant relief.” The state appellate

court continued, “Because the allegations in the postconvic‐

tion motion were insufficient under Bentley and Allen,

whether to grant a hearing was committed to the [trial] court’s

discretion. We discern no erroneous exercise of that discre‐

tion.” In denying Wilson’s claim for ineffective assistance of

trial counsel under the Allen standard, the state court of ap‐

peals relied on an adequate and independent state law

ground.

As stated, federal courts “may not review federal claims

that were procedurally defaulted in state court—that is,

claims that the state court denied based on an adequate and

independent state procedural rule.” Davila, 137 S. Ct. at 2064.

The Allen standard at issue here is both adequate and inde‐

pendent. As to adequacy, “For a state‐law ground to be ‘ade‐

quate,’ it must be ‘firmly established and regularly followed.’”

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

Walker v. Martin, 562 U.S. 307, 316 (2011)). The state law

ground also “must not have been applied in a manner that

No. 21‐1402 15

‘impose[s] novel and unforeseeable requirements without fair

or substantial support in prior state law’ or ‘discriminate[s]

against claims of federal rights.’” Id. (quoting Walker, 562 U.S.

at 320–21). When examining the adequacy of a state law pro‐

cedural ground, our review is limited to whether the proce‐

dural ground “is a firmly established and regularly followed

state practice at the time it is applied, not whether the review

by the state court was proper on the merits.” Lee v. Foster, 750

F.3d 687, 694 (7th Cir. 2014).

We have previously held the Allen pleading standard is a

firmly established and regularly followed state practice, and

we do so here. In Lee v. Foster, the Wisconsin Court of Appeals

denied Lee’s claim for ineffective assistance of counsel and

“found that the allegations regarding [Lee’s] postconviction

counsel’s performance were conclusory and legally insuffi‐

cient” under the Allen standard. Id. at 693. On federal habeas

review, we held that Lee’s claim was procedurally defaulted

and that the Allen rule “is a well‐rooted procedural require‐

ment in Wisconsin and is therefore adequate.” Id. at 694. So,

the Allen standard functions as an adequate state law ground

for denial of Wilson’s ineffective assistance of trial counsel

claim.

The Allen pleading standard is also independent. A state‐

law procedural ground satisfies the independence prong

when “the court actually relied on the procedural bar as an

independent basis for its disposition of the case.” Lee‐Kendrick,

38 F.4th at 587 (quoting Garcia, 28 F.4th at 774). Here, the Wis‐

consin Court of Appeals explicitly referenced and relied upon

the Allen procedural rule in disposing of Wilson’s claim for

ineffective assistance of trial counsel. Thus, the Allen standard

served as an independent state law ground for denying

16 No. 21‐1402

Wilson’s claim. We have reached the same conclusion in other

cases implicating the Allen standard. See, e.g., Lee, 750 F.3d at

693 (holding that the Allen rule “clearly served as an inde‐

pendent basis for the court’s denial of [petitioner’s] motion”);

Triplett v. McDermott, 996 F.3d 825, 829–30 (7th Cir. 2021) (con‐

cluding that the Allen pleading standard is an adequate and

independent basis for the state court’s denial of petitioner’s

ineffectiveness claim). So, the district court properly ruled

that Wilson’s ineffective assistance of trial counsel claim was

procedurally defaulted, and we affirm that decision.

B

Next up is Wilson’s claim that his postconviction counsel

rendered ineffective assistance during the § 974.02 proceed‐

ing. This claim implicates the proper classification of § 974.02

proceedings, but in Lee‐Kendrick we already decided that: “[A]

claim of ineffective assistance of counsel under [Wisconsin

Statute] § 974.02 is part of a direct appeal rather than a request

for collateral review.” 38 F.4th at 587. So, 28 U.S.C. § 2254(i),

which bars federal habeas relief for the ineffective assistance

of counsel at collateral post‐conviction proceedings, does not

preclude Wilson’s claim here.

With that, we move to whether Wilson procedurally de‐

faulted his claim for ineffective assistance of postconviction

counsel. The State argues that Wilson defaulted this claim by

failing to present it for one complete round of state court re‐

view. Wilson does not vigorously contest that position, focus‐

ing instead on overcoming default.

Under 28 U.S.C. § 2254(b)(1)(A), a petition for federal ha‐

beas relief shall not be granted unless it appears that “the ap‐

plicant has exhausted the remedies available in the courts of

No. 21‐1402 17

the State.” Applying that provision, we have held that “[t]o

fairly present [a] federal claim, a petitioner must assert that

claim throughout at least one complete round of state‐court

review, whether on direct appeal of his conviction or in post‐

conviction proceedings.” Richardson v. Lemke, 745 F.3d 258,

268 (7th Cir. 2014) (citing McDowell v. Lemke, 737 F.3d 476, 482

(7th Cir. 2013)). The complete round rule “means that the pe‐

titioner must raise the issue at each and every level in the state

court system, including levels at which review is discretion‐

ary rather than mandatory.” Id. (citing Lewis v. Sternes, 390

F.3d 1019, 1025–26 (7th Cir. 2004)).

Wilson voluntarily dismissed his claim for ineffective as‐

sistance of postconviction counsel before the Wisconsin Su‐

preme Court ruled on it. That voluntary dismissal effected the

same outcome as not filing a petition in the first place—the

Wisconsin Supreme Court never evaluated his claim for inef‐

fective assistance of postconviction counsel. As a result, Wil‐

son’s claim for ineffective assistance of postconviction counsel

is procedurally defaulted. See Johnson v. Foster, 786 F.3d 501,

504–05 (7th Cir. 2015) (holding that defendant’s failure to file

a petition for review with the Wisconsin Supreme Court vio‐

lated the complete round of review rule). Without an entire

round of state‐court review, Wilson procedurally defaulted

his claim.

III

Where, as here, a petitioner’s claims are procedurally de‐

faulted, federal habeas review is precluded unless the pris‐

oner demonstrates either of two things. Coleman v. Thompson,

501 U.S. 722, 750 (1991). The petitioner may demonstrate

“cause for the default and actual prejudice as a result of the

alleged violation of federal law,” or he may “demonstrate that

18 No. 21‐1402

failure to consider the claims will result in a fundamental mis‐

carriage of justice.” Id. Moreover, “[t]he miscarriage of justice

exception ‘applies only in the rare case where the petitioner

can prove that he is actually innocent of the crime of which he

has been convicted.’” Blackmon v. Williams, 823 F.3d 1088, 1099

(7th Cir. 2016) (quoting McDowell, 737 F.3d at 483); see also

Sawyer v. Whitley, 505 U.S. 333, 339 (1992). Wilson does not

allege cause and prejudice,8 so we focus on the actual inno‐

cence exception.

Wilson maintains that he has made a sufficient showing of

actual innocence and urges us to review the merits of his

claims. First, he suggests that the State has already admitted

that statements made during state court proceedings would

have given a jury reasonable doubt, and thus conceded the

question of actual innocence. Wilson further asserts that Wal‐

lace’s testimony is sufficiently compelling and thus “there can

be little doubt that [he] has satisfied the actual innocence

standard.” More precisely, Wilson contends that the Wallace

testimony is persuasively exculpatory and that Smith‐Cur‐

rin’s preliminary hearing statements corroborate Wallace’s

account. He also tries to downplay the probative force of the

inculpatory record evidence.

The State responds that the Wallace evidence—including

when considered with the rest of the trial evidence—falls

short of sufficiently establishing actual innocence. It contends

Wallace’s testimony is uncorroborated and in tension with

other testimonial and physical evidence. It also highlights

8 At oral argument Wilson’s counsel informed us that Wilson was not

pursuing relief on a cause‐and‐prejudice theory. See Oral Arg. at 6:12–7:02.

No. 21‐1402 19

that, even if true, Wallace’s account does not technically rule

Wilson out as a potential gunman.

We start with whether the State conceded that Wilson has

made a sufficient showing of actual innocence. Wilson is cor‐

rect that the State previously admitted he was entitled to a

hearing on the newly discovered evidence. After Wilson filed

a pro se motion about that evidence, both the state trial and

appellate courts declined his request for a hearing. Wilson ap‐

pealed to the Wisconsin Supreme Court, and on that court’s

direction, the State filed a response conceding that Wilson was

entitled to a hearing. Specifically, the State admitted it was

“reasonably probable that if a jury were to find Wallace cred‐

ible, her testimony would create a reasonable doubt about

whether Wilson was the shooter.”

Even so, the federal standard for a showing of actual inno‐

cence demands more than what the State conceded. When we

evaluate an actual innocence claim for purposes of federal ha‐

beas review, the appropriate question is whether “it is more

likely than not that no reasonable juror would have convicted

[Wilson] in the light of the new evidence.” Schlup v. Delo, 513

U.S. 298, 327 (1995). “To be credible, such a claim requires pe‐

titioner to support his allegations of constitutional error with

new reliable evidence—whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physi‐

cal evidence—that was not presented at trial.” Id. at 324. The

burden rests on the petitioner to make the requisite showing.

Id. at 327. This is a more demanding standard than what is

required to merit a hearing. The State’s concession that Wil‐

son was entitled to a state‐court evidentiary hearing does not

also serve as an admission that Wilson has shown actual in‐

nocence. Language from Schlup clarifies this point. There, the

20 No. 21‐1402

Supreme Court explained that “[t]he meaning of actual inno‐

cence … does not merely require a showing that a reasonable

doubt exists in the light of the new evidence, but rather that

no reasonable juror would have found the defendant guilty.”

Id. at 329. So, the State did not concede the question of actual

innocence.

We further hold that Wallace’s testimony does not suffi‐

ciently establish Wilson’s actual innocence. At the outset, we

acknowledge that this evidence is both new and credible,

which are predicate requirements for the actual innocence

gateway. Id. at 324. The evidence is new because it was not

presented at Wilson’s trial, and it is credible because the Wis‐

consin Court of Appeals found that Wallace’s testimony was

generally worthy of belief. In this appeal, the State also recog‐

nizes as much.

Yet the presentation of new and credible evidence does not

automatically satisfy the Schlup standard for actual innocence.

Instead, the new evidence must be considered along with the

existing evidentiary record. “In applying this standard, we

must consider all the evidence, both old and new, incriminat‐

ing and exculpatory, without regard to whether it would nec‐

essarily be admitted at trial.” Blackmon, 832 F.3d at 1101 (citing

House v. Bell, 547 U.S. 518, 538 (2006)). From there, we make a

probabilistic determination about what reasonable jurors

would do. House, 547 U.S. at 538. The requisite probability is

established only if Wilson shows that “it is more likely than

not that no reasonable juror would have convicted him in the

light of the new evidence.” Schlup, 513 U.S. at 327. Finally, we

always keep in mind that the “Schlup standard is demanding

and permits review only in the ‘extraordinary’ case.” House,

547 U.S. at 538 (quoting Schlup, 513 U.S. at 327); see also

No. 21‐1402 21

McQuiggin v. Perkins, 569 U.S. 383, 401 (2013) (“We stress once

again that the Schlup standard is demanding.”).

Adhering to the rigor of the Schlup standard for actual in‐

nocence, we cannot say that the Wallace evidence is so com‐

pelling and unequivocal that no reasonable juror would have

convicted Wilson in the light of it. Wallace’s testimony just

adds a new voice to a highly complex, and often inculpatory,

evidentiary record. For instance, both Smith‐Currin and King

still unequivocally identified Wilson as the gunman and de‐

scribed him emerging from an alleyway and opening fire. A

reasonable juror could credit their testimony as honest and

compelling—especially since a detective testified that the lo‐

cation of the .40 bullet casings was generally consistent with

a shooter coming from the alleyway.

A reasonable juror could likewise find the State’s impeach‐

ment evidence of Samantha Coats and Sanntanna Ross—

which included Coats’ prior identification of Wilson as the

gunman during a photo lineup—persuasive. Plus, Wallace’s

testimony and the physical evidence do not foreclose the ex‐

istence of multiple shooters. Wallace testified she heard mul‐

tiple guns firing, and detectives recovered two different sets

of bullet casings. She explained “[i]t wasn’t like it was just one

gun. Like you could hear different guns going off. It wasn’t

like just one person shooting outside.” So, a reasonable juror

could consider Wallace’s testimony and still find that Wilson

was one of two (or more) shooters. Plus, no other witness’s

account of the shooting matches Wallace’s. The closest corrob‐

oration of Wallace’s version comes from Smith‐Currin’s pre‐

liminary hearing statement, in which he testified that people

thought he was shooting. But that advances the ball little,

22 No. 21‐1402

because Wallace is still the only identified witness to accuse

Smith‐Currin of being the gunman.

The discrepancies in testimony do not end there. As men‐

tioned, witnesses provided varied accounts of the shooting

and the shooter. Whether it is the gunman’s height, hair, or

clothing, the witnesses’ recollections differed. Reasonable ju‐

rors could draw different conclusions from this evidence.

Even with Wallace’s testimony, we are left with a series of

competing eyewitness accounts. When evaluating a claim of

actual innocence, our role “is not to make an independent fac‐

tual determination about what likely occurred, but rather to

assess the likely impact of the evidence on reasonable jurors.”

House, 547 U.S. at 538. As the dissent emphasizes, a state court

found Wallace’s testimony to be credible. But that finding

does not mean that a reasonable juror would necessarily

credit Wallace’s account of the shooting over that of any other

witness, such as Smith‐Currin or King. A conflict between

trial testimony remains, notwithstanding Wallace’s credibil‐

ity, and we cannot say that it is more likely than not that no

reasonable juror would have convicted Wilson in the light of

the new evidence.

Our conclusion accords with relevant precedent. In Black‐

mon, the court heard competing eyewitness testimony. 823

F.3d 1088. There, two gunmen approached a victim and

opened fire. Id. at 1092. The ensuing bench trial focused on the

identity of the second gunman, and eyewitness testimony was

paramount. Id. at 1092, 1095–96. Approximately two months

after the shooting, two eyewitnesses identified Blackmon as

one of the triggermen through photo lineups and in‐person

lineups. Id. at 1094. Those same witnesses identified Black‐

mon as the gunman at trial. Id. at 1093–95. In response,

No. 21‐1402 23

Blackmon called three defense witnesses. Two of those wit‐

nesses provided an alibi for Blackmon; the third claimed to

have watched the shooting and testified that Blackmon was

not present at the scene. Id. at 1095–96. The presiding judge

determined that Blackmon was one of the shooters and found

him guilty. Id. at 1096.

Like Wilson, Blackmon challenged his conviction through

federal habeas and tried to pass through the actual innocence

gateway for certain defaulted claims. Id. at 1100–01. To that

end, Blackmon provided two new eyewitness affidavits. Id. at

1097. Each of the new witness affidavits claimed that Black‐

mon was not one of the gunmen. Id. Reviewing all the evi‐

dence—old and new—this court concluded that Blackmon’s

showing of actual innocence was insufficient. Id. at 1101–02.

In reaching that conclusion, this court noted that the new

evidence merely contrasted with the State’s two credible eye‐

witness accounts. Id. And the new eyewitnesses did not come

forward until eight years after the shooting. Id. at 1102. So, the

“balance between inculpatory and exculpatory witnesses

[was] not enough to meet the demanding Schlup standard for

actual innocence.” Id.

The facts here track those in Blackmon. Like Blackmon, Wil‐

son offers new eyewitness testimony into a factual record oc‐

cupied by contrasting eyewitness statements. But as ruled in

Blackmon, the introduction of new eyewitness testimony does

not amount to a showing of actual innocence when strong and

credible testimony to the contrary remains. Just as the two

new affidavits in Blackmon merely added to the balance of in‐

culpatory and exculpatory evidence, so too does Wallace’s

testimony. Even with the Wallace evidence, we are left with a

24 No. 21‐1402

complex factual record pointing in different directions.9 We

therefore hold that Wilson has not satisfied the Schlup stand‐

ard for actual innocence. Other cases from this court also sup‐

port our conclusion. See, e.g., Smith v. McKee, 598 F.3d 374,

387–88 (7th Cir. 2010) (concluding insufficient showing of ac‐

tual innocence where petitioner’s two new affidavits did not

sufficiently counter the state’s evidence, which included two

eyewitness identifications and a self‐inculpatory statement);

Hayes v. Battaglia, 403 F.3d 935, 937–38 (7th Cir. 2005) (holding

that a draw between the number of eyewitnesses for and

against defendant—six new exculpatory witnesses versus the

state’s six inculpatory trial witnesses—“cannot establish that

no reasonable factfinder would have found the applicant

guilty”) (cleaned up).

Finally, Jones v. Calloway, 842 F.3d 454 (7th Cir. 2016), is in‐

structive as a rare case where we concluded that the defend‐

ant had made a sufficient showing of actual innocence. Jones

was convicted of murder and sought federal habeas relief. The

district court held his claims procedurally defaulted, forcing

Jones to rely on the actual innocence gateway to excuse his

default. Id. at 459. The new evidence Jones brought to bear on

his case was exceptional. Michael Stone, another man present

at the murder scene, provided new testimony that he was the

lone shooter. Id. at 460. And his testimony was compelling.

9 The dissent observes that, unlike in Blackmon, 823 F.3d at 1093, the

inculpatory witnesses here knew Wilson before the shooting. For our dis‐

senting colleague, that prior knowledge dilutes the weight of the photo

lineup identifications by King and Smith‐Currin. But Wallace was not a

stranger to Wilson or Smith‐Currin, either. Indeed, at the evidentiary hear‐

ing Wallace testified she had been around Smith‐Currin “plenty of times”

before the shooting, and Wilson helped set up the music at Wallace’s

apartment on the night of the crime.

No. 21‐1402 25

Stone had previously turned himself in for the crime, con‐

fessed to the shooting within days, identified the murder

weapon, and given testimony that was consistent with the

case’s forensic evidence. Id. at 462. Stone’s story of the shoot‐

ing had also remained consistent for over a decade. Id. at 463.

The district court found a sufficient showing of actual inno‐

cence, and this court agreed. Id. at 460, 462.

In Jones, the new witness took the stand and personally

claimed sole responsibility for the crime. Id. at 462. His testi‐

mony was consistent with the physical evidence as well,

whereas the testimony of prosecution witnesses in that case

was often in tension with the forensics. Id. The Wallace evi‐

dence is not so forceful. Her eyewitness testimony merely

contrasts with that of Smith‐Currin and King (and to a lesser

degree, Coats and Ross). Reviewing all the facts, a reasonable

juror could still conclude that Wilson was the shooter. Ac‐

cordingly, Wilson has not sufficiently shown actual inno‐

cence.

IV

Given the unexcused procedural default, we do not reach

the merits of Wilson’s ineffective assistance of trial and post‐

conviction counsel claims.

In summary, Wisconsin state courts disposed of Wilson’s

ineffective assistance of trial counsel claim on adequate and

independent state grounds, and he failed to present his inef‐

fective assistance of postconviction counsel claim for one

complete round of state court review. So, both of his claims

are procedurally defaulted. Wilson attempts to overcome

these defaults, but he fails to make a sufficient showing of ac‐

tual innocence. Even considering Wallace’s testimony, we

26 No. 21‐1402

cannot conclude that it is more likely than not that no reason‐

able juror would have convicted Wilson. The Schlup standard

for actual innocence is high and reserved for the exceptional

case, a threshold Wilson does not clear here.

For these reasons, the district court’s denial of Wilson’s pe‐

tition for federal habeas relief is AFFIRMED.

No. 21‐1402 27

HAMILTON, Circuit Judge, dissenting. During post‐convic‐

tion hearings in the state courts, Lakisha Wallace testified that

the shooter was actually Antwan Smith‐Currin, who was also

the state’s chief witness against petitioner Wilson. Ms. Wal‐

lace witnessed the incident from the bottom floor of the du‐

plex where she lived downstairs from Smith‐Currin. She tes‐

tified that she heard Smith‐Currin yell to his brother to give

him a gun and then saw Smith‐Currin wave a handgun on the

front porch of the duplex, open fire, and run into the crowd

while shooting. According to Ms. Wallace, Smith‐Currin im‐

mediately came back inside and shouted to his brother that he

had “just offed” someone. Ms. Wallace further testified that in

the days after the shooting, she heard Smith‐Currin say that

he planned to blame the crime on Wilson. She also offered a

plausible motive for the plan to blame Wilson. Smith‐Currin

had seen his girlfriend with Wilson on the duplex porch the

day before the shooting and was angry about them being to‐

gether.

The extraordinary feature of this habeas case is the combi‐

nation of two facts. First, the state agreed during state court

proceedings that “[i]t is reasonably probable that if a jury

were to find Ms. Wallace credible, her testimony would create

a reasonable doubt about whether Wilson was the shooter.”

Second, when Ms. Wallace actually testified before a state

court judge, that judge found her credible. Under these unu‐

sual circumstances, and given other significant weaknesses in

the state’s case, we should find that Wilson has made a show‐

ing of innocence sufficient to excuse his procedural default.

We should remand to the district court for an evidentiary

hearing on his claims of ineffective assistance of counsel.

28 No. 21‐1402

My colleagues and I agree on all but that one decisive is‐

sue. As the majority opinion explains, under Wisconsin’s un‐

usual procedures for post‐conviction relief, Wilson had a fed‐

eral constitutional right to effective assistance of counsel in

post‐trial proceedings under Wisconsin Statute § 974.02. Ante

at 16, citing Lee‐Kendrick v. Eckstein, 38 F.4th 581, 587 (7th Cir.

2022). We also agree that Wilson procedurally defaulted his

ineffective assistance claims in the state courts. Ante at 17.

Where we disagree is whether Wilson has shown “actual in‐

nocence” so as to excuse his procedural default.

To avoid the consequences of his procedural default, Wil‐

son offers the testimony of Lakisha Wallace to show that he is

actually innocent. See generally Sawyer v. Whitley, 505

U.S. 333, 339 (1992); Blackmon v. Williams, 823 F.3d 1088, 1099

(7th Cir. 2016). To do so, Wilson must come forward with new

evidence showing “it is more likely than not that no reasona‐

ble juror would have convicted him in the light of the new

evidence.” Schlup v. Delo, 513 U.S. 298, 327 (1995); see also

McQuiggin v. Perkins, 569 U.S. 383, 386, 390 (2013). His evi‐

dence must be reliable and may take the form of “exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence.” Gladney v. Pollard, 799 F.3d 889, 896 (7th

Cir. 2015) (emphasis added), quoting Schlup, 513 U.S. at 324.

In applying this test, it is essential to remember that the

hypothetical jurors would have to examine all the new and

old evidence and be convinced of guilt beyond a reasonable

doubt. That was, after all, the point of the Supreme Court’s de‐

cision in the canonical Jackson v. Virginia, 443 U.S. 307, 318–21

(1979) (issue in federal habeas review was not whether “any

evidence” supported the state conviction but whether evi‐

dence could support finding of guilt beyond a reasonable

No. 21‐1402 29

doubt). The Supreme Court has rephrased the relevant stand‐

ard (“to remove the double negative”) as requiring new evi‐

dence making it “more likely than not [that] any reasonable

juror would have reasonable doubt.” House v. Bell, 547 U.S.

518, 538 (2006). As I read this record, including Ms. Wallace’s

testimony credited by the state court, there is some evidence

to support a finding of guilt, but, per Jackson v. Virginia and

House v. Bell, any reasonable juror would have a reasonable

doubt once Ms. Wallace’s testimony is added to the mix.

As the majority opinion presents the facts, Wilson’s trial

for the fatal shooting of Melvin Williams presented testimony

from four eyewitnesses who identified Wilson as the shooter.

From that premise, the majority opinion relies on a portion of

our decision in Blackmon where we held that new exculpatory

testimony from two eyewitnesses was not enough to over‐

come procedural default. 823 F.3d at 1102. The key to that por‐

tion of Blackmon was that Blackmon had been identified as one

of two killers independently, and consistently, by two utterly

neutral witnesses. Id. at 1101–02.1

The case here was far shakier. No witness consistently iden‐

tified Wilson as the shooter. The two government witnesses who

identified Wilson at trial spoke to police on the night of the

shooting. Both knew Wilson at the time. They did not claim

1 We remanded Blackmon for an evidentiary hearing on other grounds,

namely his claim that counsel was ineffective in failing to investigate ade‐

quately his alibi defense. 823 F.3d at 1104–07. After remand, Mr. Blackmon

won habeas relief on that basis. Blackmon v. Pfister, 2018 WL 741390 (N.D.

Ill. Feb. 7, 2018).

30 No. 21‐1402

that night that they saw Wilson was present, let alone shoot‐

ing.2

That night, Shakira King told police that she had heard an‐

other woman claiming Wilson was the shooter. By the time of

trial, however, King’s story had changed. She testified that she

herself saw Wilson shooting, and she denied having told an

officer on the night of the shooting that it was her friend who

claimed to have recognized the shooter as Wilson. King’s trial

testimony also contradicted her contemporaneous descrip‐

tion of the shooter’s hairstyle. Her description of the shooter’s

clothing did not match that given by any other witness. And

at trial King denied being part of the fight that preceded the

shooting, though she had previously admitted involvement

to police and other witnesses had confirmed her part in the

melee.

Moving to Smith‐Currin, he did not tell police that he saw

Wilson shooting until a month after the crime. On the night of

the shooting, Smith‐Currin spoke with police but did not

mention Wilson. Smith‐Currin’s trial testimony describing

what he saw the shooter wearing was inconsistent. And at a

preliminary hearing, Smith‐Currin even testified that some

people claimed they had seen him shooting from the duplex’s

porch.

2 The fact that both witnesses knew Wilson prior to the shooting is

important. The majority opinion states correctly that King and Smith‐Cur‐

rin identified Wilson as the gunman out of photo lineups. This procedure

seems to add credibility to the identifications but its weight is diluted by

the fact that both already knew him.

No. 21‐1402 31

The two other witnesses who the state argued had previ‐

ously identified Wilson as the shooter strongly refuted or re‐

canted such statements at trial. Sanntanna Ross told the jury

that what police construed as her identifying Wilson as the

shooter was simply her indicating that she knew Wilson.

When asked on the stand whether she saw Wilson shooting,

Ross unequivocally said no. Samantha Coats told the jury that

her prior identification of Wilson as the shooter was based

only on rumors. When Coats was pressed for an identification

by police during the investigation, she said, her boyfriend was

in custody and she had been threatened with arrest herself.

She chose Wilson (whom she knew and recognized) in a

photo lineup to avoid arrest and in the hope that the police

would release her boyfriend.

Unlike the Blackmon case, Wilson has also offered new ev‐

idence that not only exonerates him but identifies a different

shooter, the state’s chief witness. In applying the Schlup stand‐

ard, which may be met by “trustworthy eyewitness ac‐

counts,” keep in mind that the state judge who heard Ms. Wal‐

lace testify, subject to lengthy cross‐examination, credited her

testimony.

If a jury heard all the trial evidence and Ms. Wallace’s tes‐

timony, there would of course still be the trial testimony of

Smith‐Currin and King identifying Wilson as the shooter.

That’s “some evidence”—but that low bar was the standard

rejected in Jackson. Given the problems with their testimony—

including their delayed identifications of a person they knew

as the shooter they claimed to have seen that night—the lack

of any other evidence placing Wilson at the scene, and the

32 No. 21‐1402

consistent and credible testimony of Ms. Wallace, a conscien‐

tious juror could not reasonably find Wilson guilty beyond a

reasonable doubt.

The majority opinion also suggests that Ms. Wallace’s tes‐

timony does not necessarily exculpate Wilson because there

might have been more than one shooter. Perhaps both Smith‐

Currin and Wilson, and even others, were armed and fired

shots? The principal problem with this possibility is that it

would make it even harder to convince a jury beyond a rea‐

sonable doubt that Wilson was the one who shot the victims.

The state prosecuted Wilson on the theory that there was one

shooter and that he was the one. The new, more complex, and

untested theory of multiple shooters does not offer a solid ba‐

sis for denying relief.

The test for actual innocence is demanding, and cases of

proven actual innocence are relatively rare. In my view, this

is one of those rare cases. I am not saying that Wilson is enti‐

tled to a new trial based on his as‐yet‐unproven claims of in‐

effective assistance of counsel. But I believe he is entitled to a

hearing to try to prove them. I respectfully dissent.