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Lee v. Avila

United States Court of Appeals, Seventh Circuit

September 13, 2017

Kendrick Lee, Petitioner-Appellant,
Lisa Avila, Respondent-Appellee.

          Argued September 14, 2016

         Appeal from the United States District Court for the Eastern District of Wisconsin. No. 14-CV-373-JPS - J.P. Stadtmueller, Judge.

          Before Posner, [*] Easterbrook, and Sykes, Circuit Judges.

          Sykes, Circuit Judge.

         Kendrick Lee, a Wisconsin prisoner, applied for a writ of habeas corpus under 28 U.S.C. § 2254 alleging that his trial counsel was constitutionally ineffective for failing to preserve objections, adequately cross-examine witnesses, and develop various factual points at his trial on drug charges. Applying the Strickland standard, the Wisconsin Court of Appeals rejected Lee's claim for lack of prejudice. In doing so the state court explicitly addressed all but one of Lee's specific complaints about his trial counsel's performance.

         When a state court rejects a prisoner's federal claim without discussion, a federal habeas court must presume that the court adjudicated it on the merits unless some state-law procedural principle indicates otherwise. Harrington v. Richter, 562 U.S. 86, 98 (2011). The Richter presumption applies when the state court's decision expressly addresses some but not all of a prisoner's claims. Johnson v. Williams, 133 S.Ct. 1088, 1094 (2013). Lee has not rebutted the presumption, so the state court's entire decision is subject to deferential review under § 2254(d). The district court denied relief, holding that the state appellate court reasonably applied Strickland. We agree and affirm.

         I. Background

         Milwaukee police received a confidential tip that a residence located at 3748 North 17th Street on the city's north side was being used as a drug house. Officers secured a no-knock warrant to search the residence. When they entered the home, they immediately came upon Lee, who was in the living room next to a coffee table laden with the tools of the drug trade: a digital scale, a razor blade, a latex glove, a box of sandwich baggies, a cell phone, and $157 in cash. An open pair of scissors was on the floor next to the coffee table. A corner-cut plastic baggie containing 5.7 grams of cocaine lay on the table.

          Officers searched Lee and found $582 in cash and the keys to the house in his pocket. At trial Officer Brian Burch testified that the keys were hooked on a single master key ring along with Lee's personal house keys. Officers recovered two larger bags of cocaine from the basement. In the kitchen they found a loaded handgun and a box of latex gloves on top of a pantry.

         Lee was charged with three state crimes: keeping a drug house, possession of cocaine with intent to deliver, and possession of a firearm by a felon. His defense at trial was that he was just an innocent bystander. He testified that the only reason he was at the house was to help his brother Tommie move some of his belongings into the basement for storage. Tommie testified that he had been evicted from his nearby home on the morning of the search and did not have the time or space to move everything into his new house located just a few blocks away. He further testified that a friend known to him only as "Rowe" gave him permission to store some of his things in the basement of the drug house, and he enlisted Kendrick and their brother Jimmie to help him move the heavier items. The three Lee brothers gave differing accounts of the move, but altogether they testified that they moved many large items into the basement of the drug house that morning, including box springs, beds, dressers, a glass table, a recliner, end tables, and some boxes of belongings. This testimony was directly contradicted by Officer Mark Harms, who told the jury that he was in the basement during the execution of the warrant and did not see any of these items.

         Lee also offered an explanation for why he just happened to be standing right next to the table with the bag of cocaine and the drug paraphernalia when the officers entered and why he had the keys to the drug house in his pocket. He testified that when he and his brothers finished moving the furniture and other items into the basement, Tommie gave him the keys so he could reenter the house to use the bathroom located on the main floor. Lee explained that he put the keys in his pocket only temporarily while using the bathroom. As he was washing his hands, he heard a loud crashing noise coming from the living room as the police entered the house. At that point he entered the living room and encountered the officers there.

         Tommie took responsibility for the handgun found in the kitchen. He testified that the gun was his and he bought it off the streets. The prosecutor tried to poke holes in this testimony on cross-examination. The prosecutor first established that Tommie had a cousin named Donald McCaleb, and then asked him if he would be "surprise[d] ... to know that Donald McCaleb is the registered owner of that gun?" Tommie responded, "Yes, it would" surprise him to learn that. The prosecutor returned to this line of questions during closing argument, calling Tommie's response "interesting."

         The prosecutor impeached the Lee brothers with their extensive criminal records and also drew out inconsistencies in their accounts of what happened on the day of the search. To cast further doubt on their moving-day story, during Tommie's cross-examination the prosecutor implied that the eviction could not have occurred until six weeks after the date of the search. That was incorrect; the prosecutor apparently misunderstood the civil process for an eviction. Lee's counsel did not object.

          The jury returned a guilty verdict on each of the two drug crimes but found Lee not guilty on the firearm charge. Lee moved for postconviction relief claiming ineffective assistance of counsel. His motion raised many ...

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