Appeal from the United States District Court for the Eastern District of Wisconsin. No. 99 C 1495--Lynn Adelman, Judge.
Before Posner, Manion, and Kanne, Circuit Judges.
The opinion of the court was delivered by: Manion, Circuit Judge
Alonzo Perry was convicted in a Wisconsin state court as a "party to a crime" on several counts, including first degree intentional homicide, and was sentenced to life imprisonment. After pursuing direct appeals and post-conviction proceedings in the state court system, Perry filed a petition for habeas corpus relief in federal district court, arguing that the Wisconsin Court of Appeals had unreasonably applied federal law in violation of his Sixth Amendment right to effective assistance of counsel and his Fourteenth Amendment right to due process. The district court denied his petition, and Perry appeals. We affirm.
I. Factual & Procedural Background
In the early morning hours of August 13, 1995, Harry Roberts was killed and two other men, Michael Moore and Walter Parker, were injured in an armed robbery and shooting incident outside of C.C. Havana's tavern in Milwaukee, Wisconsin. Three persons, Alonzo Perry, Joenathon Burnley and Leugene Hampton, were arrested and tried for their involvement in the crime. All three of the accused were clearly involved in the crime. There is some dispute as to the degree of involvement and who actually pulled the trigger during the assault.
At the trial of Alonzo Perry, the State presented testimony by the two wounded men, by a witness, Howard Thomas, and by police officers Walsh and July, who had arrived at the scene as the incident was occurring. Immediately following the incident, Parker told detectives that he had seen three men with masks come out of a field and then run back into it after the shooting. Thomas testified that he saw three men running from the scene. Moore testified that he was at the bar with Roberts and Parker that evening, that the three of them left the bar at closing and went to Roberts' car, and that Moore got into the passenger side while Roberts got into the driver's side. Moore explained that he then heard multiple gunshots coming from the sidewalk, saw the barrel of a gun sticking through the window and closed his eyes. He felt that he had been shot in the arm and heard the person with the gun say, "This is a jack." Moore testified that a second person with a gun was standing behind the person talking to him, and that the second person's gun was not pointed at the car. Moore further testified that the first person asked for money and reached into his front shirt pocket and took twenty dollars. He stated that the second person said, "This isn't enough money, shoot him anyway." Moore testified that he told the first person he had more money in his shoe, and that the first person then removed his (Moore's) sock and the two men then left. Moore testified that the weapon the first man pointed at him looked like a nine millimeter weapon. Moore further testified that he had heard two guns going off in rapid sequence, that he wasn't sure if both guns were fired into Roberts' car, and that he did not know whether the shots from the second gun came from the second person standing outside his door or from somewhere else. All of the bullet casings found near the scene of the shooting, and all of the bullets found in Roberts' car and in the victims, came from a nine millimeter gun. A single .45 caliber bullet was lodged inside the radio of a car parked in front of Roberts' car. The evidence indicated that the bullet had entered that car through the rear window.
Perry and Hampton were apprehended and arrested close to the scene, and Burnley was apprehended and arrested later. When Perry was found, he was carrying a fully-loaded magazine for a .45 caliber handgun and he was missing a shoe. Police recovered his shoe in a nearby yard and they found a .45 caliber handgun near the shoe. The .45 handgun had the capacity to hold eight rounds, seven in the magazine and one in the chamber. When the gun was found, the magazine contained six rounds and there was one unfired cartridge in the chamber. The nine millimeter weapon itself was never found. The next morning, however, a nine millimeter magazine was found near the spot where Perry and Hampton had been apprehended.
In the days following his arrest, Perry made two separate statements to detectives which were also admitted at his trial. In the first statement, he asserted that Burnley was the primary actor in the shooting, that Burnley had the nine millimeter weapon, that he had fired all the shots into the car and into the victims and that his brother, Hampton, who was present at the scene, was not involved in the incident. In his second statement, he stated that he and Burnley arrived at the bar around 1:45 a.m. and that Burnley had Hampton's nine millimeter handgun and was taking it to Hampton, who was already at the club. Perry also admitted that he was carrying his own .45 weapon. Perry further stated that, before going into the bar, Burnley left the nine millimeter under the seat of the car, as the tavern had a metal detector, but that Perry kept his gun with him since he knew he could not get into the bar since he was only nineteen. Perry explained that he waited outside for Burnley and Hampton and they came out around 2:08 a.m. He further stated that the three of them walked to Burnley's car and "got ready to rob anyone that was walking down the street with some gold on." They got into the car, and all put on masks or skull caps. Hampton then got the gun from underneath the seat. While watching for victims, Hampton pointed to three men walking toward a car parked behind them and stated "Man, let's get them. Let's get them." In recounting the shooting this time, however, Perry now stated that Hampton was the primary actor and that Hampton had the nine millimeter weapon and fired all of the shots into the car. He also stated that Burnley was involved as a searcher, but was unarmed. In both statements, Perry admitted that he was present, was armed with a .45 handgun, that he fired the gun once, into the air, but not toward any car or person and that he did not know that any actual shooting of persons was going to take place.
On August 17, 1994, Perry was charged with one count of first degree intentional homicide as a party to the crime, under Wis. Stat. §§ 940.01(1) and 939.05; two counts of attempt to commit first degree intentional homicide as a party to the crime, under Wis. Stat. §§ 940.01(1), 939.32 and 939.05; and one count of armed robbery as a party to the crime, under Wis. Stat. §§ 943.32(1)(a) and 939.05. The State's theory at trial was that Perry agreed to participate in an armed robbery and was therefore guilty of each count as a "party to the crime," because under Wisconsin law a "party to a crime" is liable for the "natural and probable consequences" of a crime, here armed robbery. See Wis. Stat. §939.05(2)(c). Thus, the State argued that the intentional murder of Roberts and the attempted intentional murders of Moore and Parker were the natural and probable consequences of an armed robbery.
Perry's defense theory was that intentional murder was not the natural and probable consequence of armed robbery, and thus at most he was guilty as a "party to a crime" of felony murder, which in Wisconsin occurs where a person causes the death of another during the commission of a felony, see Wis. Stat. 940.03. To support this theory, Perry's counsel argued that Perry did not have the requisite intent to kill and had no advance knowledge that anyone would be shot during the robbery. Based on this theory, at the jury instruction conference, defense counsel requested the court to instruct the jury on felony murder, as well as on first and second degree reckless homicide. The State objected to the latter instructions but did not object to a felony murder instruction, and the court agreed to give the jury that instruction, although it refused to give instructions on first or second degree reckless homicide. It is at this point we encounter the pivotal issue in this appeal. In requesting the felony murder instruction, Perry's counsel did not specifically discuss the need for the "party to a crime" instruction to reference the felony murder instruction, and, as a result, the "party to a crime" instruction was only given with reference to the intentional homicide charge, and did not refer to the alternative, lesser included offense of felony murder.
The end result was that the trial court instructed the jury in the following manner: first, the instruction for the substantive offense of first degree intentional homicide and the lesser included offense of felony murder; second, the instruction for attempted first degree intentional homicide; third, the instruction for armed robbery; and last, the "party to a crime" instruction, specifically referencing the first degree intentional homicide charge. *fn1
On February 3, 1995, the jury convicted Perry of first degree intentional homicide as a party to the crime, two counts of attempt to commit first degree intentional homicide as a party to the crime, and one count of armed rob bery as a party to the crime. On March 25, 1995, the state court judge sentenced him to life imprisonment on Count One, with eligibility for parole to occur in not less than 45 years, to 20 years on Count Two, to be served consecutively, and 20 years on Count Three to be served concurrently. On Count IV, Perry was sentenced to 40 years to be served consecutively to the other counts, but that sentence was stayed. Additionally, Perry received 15 years of probation consecutive to Counts One, Two and Three.
Perry appealed his conviction in state court, raising issues which are not part of this appeal. On September 10, 1996, the Wisconsin Court of Appeals affirmed his convictions. The Wisconsin Supreme Court denied his petition for review on November 20, 1996. Perry then filed for post-conviction relief in Wisconsin state circuit court, raising several post-conviction claims, including (1) whether his trial counsel was ineffective for failing to ensure that a jury instruction on "party to a crime" liability referenced the felony murder charge; and (2) whether the Wisconsin jury instruction on the "natural and probable consequences" theory of "party to a crime" liability impermissibly removed the burden from the State of proving the defendant's intent to kill. As to his first argument, Perry contended that, since the evidence was undisputed that he did not shoot Roberts, the jury could not have found him guilty of felony murder according to the jury instructions provided. The only choice left to the jury, Perry argued, was to convict him of intentional homicide as a "party to a crime." However, if the jury had been given a "party to a crime" instruction in relation to the felony murder instruction, Perry believes that the jury might have convicted him on that lesser charge instead. As to his second argument, Perry argued that an intentional murder was not a "natural and probable consequence" of armed robbery, and that the "party to a crime" jury instruction incorporating that theory relieved the State of its burden to prove his intent.
The state court denied all of Perry's claims, holding that under State v. Escalona-Naranjo, 517 N.W.2d 157 (Wis. 1994), he could not raise constitutional issues for the first time in post-conviction relief without demonstrating sufficient cause for not having raised the issues on direct appeal. Id. at 164. Concluding that he had not demonstrated such cause, the court held that he had procedurally defaulted those issues. Perry appealed, and the Court of Appeals also denied his claims for relief. Perry filed a timely petition for review to the Wisconsin Supreme Court, which denied his request on December 20, 1999.
Perry filed a petition for habeas relief under Section 2254(d) in federal district court, raising the same issues. The district court concluded that Perry had procedurally defaulted the claim that the "natural and prob able consequences" jury instruction violated his right to due process, and therefore denied him habeas relief on that basis. Regarding Perry's ineffective assistance of counsel claim, the district court concluded that the State had waived its argument that Perry procedurally defaulted this claim by failing to address it in its brief, and therefore proceeded to address the merits. In doing so, the district court concluded that the Court of Appeals had not unreasonably applied Strickland v. Washington in denying Perry relief, and therefore denied his claim for habeas relief on this ground as well. The district court noted that it would have been preferable for the "party to a crime" instruction to specifically refer to felony murder by stating that Perry could be guilty of felony murder if he or another fired the fatal shot, but concluded that, "in the context of the entire trial, including the evidence presented, the arguments of both sides, and the totality of the jury instructions, . . . counsel's failure to request a more precisely tailored instruction [did not cause] prejudice to [Perry] as required by Strickland." Accordingly, the district court denied Perry habeas relief on all grounds. *fn2 Perry filed a motion for a certificate of appealability, which the district court granted. Perry now appeals.
Perry argues that he is in custody in violation of the Sixth and Fourteenth Amendments to the United States Constitution. Specifically, he argues that he was denied ineffective assistance of counsel under the Sixth Amendment and Strickland v. Washington, 466 U.S. 668 (1984), because his trial counsel failed to ensure that a jury instruction on "party to a crime" liability was integrated with the jury instruction on the lesser included offense of felony murder. Further, he argues that he was denied due process under the Fourteenth Amendment, Sandstrom v. Montana, 442 U.S. 510 (1979) and In re Winship, 397 U.S. 358 (1972) because the trial court used a jury ...