William Thomas Hudson, III v. Sue DeHaan

127 F.4th 1072

• Court: Court of Appeals for the Seventh Circuit
• Decided: February 11, 2025
• Docket: 23-2395
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 23-2395 WILLIAM THOMAS HUDSON, III, Petitioner-Appellant, v.

SUE DEHAAN, Director, Respondent-Appellee. ____________________

Appeal from the United States District Court for the Western District of Wisconsin. No. 3:21-cv-00498 — James D. Peterson, Chief Judge. ____________________

ARGUED SEPTEMBER 18, 2024 — DECIDED FEBRUARY 11, 2025 ____________________

Before RIPPLE, JACKSON-AKIWUMI, and KOLAR, Circuit Judges. RIPPLE, Circuit Judge. In 2005, William Hudson was tried and convicted in Wisconsin state court of conspiracy to com- mit first degree intentional homicide and of conspiracy to commit arson. After exhausting his state remedies, Mr. Hud- son brought a petition for a writ of habeas corpus in the dis- trict court. See 28 U.S.C. § 2254. The district court denied relief, 2 No. 23-2395

and Mr. Hudson timely appealed to this court. We now affirm the judgment of the district court. I BACKGROUND A. The events leading to Mr. Hudson’s convictions began during a previous incarceration. 1 While incarcerated, Mr. Hudson agreed with another inmate, Scott Seal, to kill Seal’s ex-girlfriend and to commit arson. Seal agreed to pay Mr. Hudson for committing both of these acts. However, Seal was acting as an informant for the State. After Mr. Hudson was released, he met with an undercover officer posing as Seal’s defense attorney. The undercover officer gave Mr. Hudson an envelope containing $6,000 and the addresses of the targets. Once Mr. Hudson accepted that envelope, he was arrested. At the time of his arrest, Mr. Hudson did not have any weapons or materials that could be used to commit these crimes. At trial, the theory of Mr. Hudson’s defense was that he never intended to kill Seal’s ex-girlfriend or to commit arson but was instead trying to scam Seal in order to support him- self and his sister, Dana Hudson. According to Mr. Hudson, he had tried to encourage a relationship between Seal and

1 The following facts are recounted in the Court of Appeals of Wisconsin

opinion. State v. Hudson, No. 2019AP1667, 2021 WL 8567774, at *1 (Wis. Ct. App. Mar. 4, 2021). In habeas proceedings, we presume that these facts are correct. See 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted by an appli- cation for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct.”). No. 23-2395 3

Dana after Seal saw a picture of Dana and “expressed inter- est” in her. 2 Mr. Hudson arranged for Dana and Seal to write each other letters, instructing Dana to limit the information she shared with Seal. At one point, Mr. Hudson tried to pres- sure Seal by telling him that Dana was in Chicago and would be in danger until Seal paid money to a third party. Dana was safe in Wisconsin at the time. Mr. Hudson and Seal’s agree- ment did not solidify until the following year, when Mr. Hud- son became more concerned about Dana’s financial situation. Mr. Hudson maintained that Dana’s troubles motivated him to try to get money from Seal, but that he never intended to commit the crimes. Mr. Hudson was the only witness for the defense. Although Dana was present, Mr. Hudson’s counsel did not call her as a witness. B. After his conviction, Mr. Hudson filed a direct appeal un- der Section 974.02 of the Wisconsin Statutes, alleging outra- geous governmental conduct and ineffective assistance of trial counsel for failing to argue that the government engaged in outrageous conduct. 3 The Wisconsin circuit court denied postconviction relief, and the Court of Appeals of Wisconsin

2 R.21-3 at 199.

3 R.21-6 at 1. In Wisconsin, “a defendant’s first avenue of relief is a post-

conviction motion under § 974.02,” which is filed in the trial court. Page v. Frank, 343 F.3d 901, 905–06 (7th Cir. 2003). A defendant need not raise “[a]rguments concerning sufficiency of the evidence or issues previously raised before the trial court” in a Section 974.02 motion to preserve his right to appeal, but all other claims “must first be brought in a § 974.02 motion.” Id. (citations omitted). 4 No. 23-2395

affirmed that denial and the underlying conviction. 4 The Su- preme Court of Wisconsin denied Mr. Hudson’s petition for review. 5 Mr. Hudson then filed his postconviction motion for col- lateral review under Section 974.06 of the Wisconsin Statutes. 6 This motion raised the claims now before us. Mr. Hudson al- leged that trial counsel was ineffective for failing to call Dana as a witness and for not investigating fully her possible testi- mony. Mr. Hudson maintained that his counsel should have undertaken a more thorough investigation of Dana’s testi- mony and then should have called her because she would have corroborated his testimony and served as a character witness. He further argued that postconviction counsel pro- vided ineffective assistance by failing to raise these claims. At evidentiary hearings, the Wisconsin circuit court heard testimony from trial counsel, postconviction counsel, Dana, and Mr. Hudson. 7 The court then held that Mr. Hudson’s counsel’s performance was not constitutionally deficient. The Court of Appeals of Wisconsin affirmed the circuit court’s judgment, holding that “Hudson’s claims fail because he has

4 Hudson, 2021 WL 8567774, at *1.

5 State v. Hudson, 989 N.W.2d 110 (Wis. 2021) (unpublished table decision).

6 “After the times for filing postconviction motions under § 974.02 and for

taking the subsequent direct appeal have expired, the defendant has the option of seeking a collateral attack on the judgment under Wis. Stat. § 974.06.” Page, 343 F.3d at 905–06. Section 974.06 motions “are limited to jurisdictional and constitutional issues.” Id. 7 In Wisconsin, these evidentiary hearings are referred to as Machner hear-

ings. State v. Machner, 285 N.W.2d 905, 908–09 (Wis. Ct. App. 1979). No. 23-2395 5

not shown that trial counsel performed deficiently.” 8 Because his claim regarding trial counsel failed, Mr. Hudson’s claim regarding post-conviction counsel also failed. The Supreme Court of Wisconsin denied review. In his habeas petition in federal court, Mr. Hudson claimed that trial counsel was ineffective for failing to call Dana as a witness and for insufficiently investigating her pos- sible testimony. 9 He submitted that the state court of appeals, in applying Strickland v. Washington, 466 U.S. 668, 687 (1984), employed the incorrect standard of review in assessing the Wisconsin circuit court’s decision. Mr. Hudson also con- tended that the state court made an unreasonable determina- tion of fact when it said that Mr. Hudson’s trial counsel de- cided, during the trial, not to call Dana as a witness. Finally, Mr. Hudson contended that the state court unreasonably ap- plied Strickland when it determined that Mr. Hudson’s coun- sel was not deficient. The district court denied the petition for relief under 28 U.S.C. § 2254. It held that the state court had not misap- plied Strickland’s standard of review and that trial counsel had “satisfied Strickland’s deferential standard.” 10 The court acknowledged that trial counsel “could have, as Hudson

8 Hudson, 2021 WL 8567774, at *2.

9 Mr. Hudson filed his first federal habeas petition in the Eastern District

of Wisconsin in 2014. Proceedings were stayed pending Section 974.06 col- lateral review in state court. After the completion of those proceedings, the stay was lifted in 2021 and the case was transferred to the Western District of Wisconsin. Mr. Hudson then filed his amended petition. 10 Hudson v. Pollard, No. 21-cv-498, 2023 WL 3950107, at *5 (W.D. Wis. June

12, 2023). 6 No. 23-2395

argues, done more to investigate the potential value of calling Dana Hudson as a witness” and that the state court made a factual determination unsupported by the record. Id. at *5–6. The court nevertheless denied the petition because “the rec- ord as a whole supports the state court’s outcome.” Id. (quot- ing Whatley v. Zatecky, 833 F.3d 762, 779 (7th Cir. 2016)). Mr. Hudson now appeals the district court’s denial of his pe- tition. II DISCUSSION A. We review a district court’s ruling on a habeas petition de novo but, under the Antiterrorism and Effective Death Pen- alty Act of 1996 (“AEDPA”), we give deferential treatment to state-court decisions on the merits. Nichols v. Wiersma, 108 F.4th 545, 552 (7th Cir. 2024) (citing 28 U.S.C. § 2254(d)). Spe- cifically, in order to obtain relief, Mr. Hudson must demon- strate that the state court’s denial “was contrary to, or in- volved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “was based on an unreasonable determina- tion of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d)(1)–(2). For a federal court to determine that the state court unreasonably applied federal law, the application “must have been more than incorrect or erroneous[,] … [it] must have been ‘objectively unreasonable.’” Wiggins v. Smith, 539 U.S. 510, 520–21 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000)). “The application of a law is reasonable if it is ‘at least minimally consistent with the facts and circum- stances of the case.’” Hall v. Zenk, 692 F.3d 793, 798 (7th Cir. No. 23-2395 7

2012) (quoting Schaff v. Snyder, 190 F.3d 513, 523 (7th Cir. 1999)); see also Andrew v. White, No. 23-6573, 2025 WL 247502 at *3 (U.S. Jan. 21, 2025) (citing Harrington v. Richter, 526 U.S. 86, 101 (2011)). Here, Mr. Hudson’s petition alleges ineffective assistance of trial counsel and of postconviction counsel. In a habeas pe- tition based on ineffective assistance of counsel, we give what is sometimes referred to as “‘doubl[e] deferen[ce]’: the federal court must give first the defense attorney and then the last state court to rule on the matter ‘the benefit of the doubt.’” Cook v. Foster, 948 F.3d 896, 908 (7th Cir. 2020) (quoting Burt v. Titlow, 571 U.S. 12, 15 (2013)). Under Strickland’s two-part analysis, “the defendant must show that counsel’s perfor- mance was deficient” and “that the deficient performance prejudiced the defense.” 466 U.S. at 687. Relevant to our case, the Court in Strickland also explained that counsel “has a duty to make reasonable investigations,” and “a particular decision not to investigate must be directly assessed for reasonable- ness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Id. at 690–91. The Court of Appeals of Wisconsin decided the case on the deficient per- formance prong of the Strickland test. The court held that trial counsel’s decision was strategic and that “Hudson had not overcome the strong presumption that counsel’s conduct was within the wide range of reasonable professional assis- tance.” 11 Mr. Hudson now submits that the Court of Appeals of Wisconsin unreasonably applied Strickland. First, Mr. Hudson contends that the Court of Appeals of Wisconsin reviewed the

11 Hudson, 2021 WL 8567774, at *2. 8 No. 23-2395

trial court’s ruling on a clear error standard, while Strickland mandates that a reviewing court employ a de novo standard. This error, he submits, is an unreasonable application of law. Second, Mr. Hudson contends that the Court of Appeals of Wisconsin made an unreasonable determination of fact by finding that trial counsel decided during the trial not to call Dana as a witness and that counsel made the decision in light of Mr. Hudson’s testimony. Mr. Hudson submits that his trial counsel clearly made the decision before the trial began, which the district court acknowledged is likely true.12 He therefore concludes that the Wisconsin court unreasonably applied Strickland when holding that his counsel was not de- ficient. Because, in his view, the Wisconsin court unreasona- bly applied the Strickland analysis, Mr. Hudson asks us to con- clude that the Wisconsin court is not entitled to deference. Mr. Hudson then urges us to employ de novo review and to hold that his counsel was deficient and that these deficiencies prejudiced the outcome of the case. We may decide a Strickland issue on either prong of the established test. “[A] court need not determine whether coun- sel’s performance was deficient before examining the preju- dice suffered by the defendant as a result of the alleged defi- ciencies.” Strickland, 466 U.S. at 697. Here, the state of the rec- ord before us counsels that the prudent course is to pretermit any discussion of the performance prong of the Strickland analysis and to decide this case on the prejudice prong. Pro- ceeding in this manner, our evaluation of the record con- vinces us that, even assuming Mr. Hudson’s contentions con- cerning counsel’s performance have merit, his petition still

12 Hudson, 2023 WL 3950107, at *5. No. 23-2395 9

fails because he has not demonstrated that any possible defi- ciencies by his trial counsel were prejudicial. See Adeyanju v. Wiersma, 12 F.4th 669, 673–76 (7th Cir. 2021). B. Because the Court of Appeals of Wisconsin did not ad- dress the prejudice prong of the Strickland test, we consider the issue de novo. We therefore “review the prejudice prong by taking our own fresh look at the evidentiary record.” Id. at 673 (quoting Gish v. Hepp, 955 F.3d 597, 605 (7th Cir. 2020)). To demonstrate prejudice, a “defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to under- mine confidence in the outcome.” Strickland, 466 U.S. at 694. Mr. Hudson submits that Dana’s testimony would have made his case stronger. In his view, only limited and circum- stantial evidence supported the prosecution’s theory of his in- tent. Dana’s testimony would have enhanced Mr. Hudson’s own credibility and supported his descriptions of the finan- cial difficulties that motivated his actions. In the state court’s hearing, however, Mr. Hudson’s trial counsel explained why he did not believe that Dana’s testi- mony was necessary. In trial counsel’s view, Mr. Hudson was himself a credible and convincing witness. He characterized Mr. Hudson’s testimony as “excellent.” 13 Additionally, Mr. Hudson’s trial counsel testified that he “didn’t think that what [Dana] could add would have been greatly beneficial or would have even improved upon [Mr. Hudson’s]

13 R.21-14 at 37–38. 10 No. 23-2395

testimony.” 14 Her testimony would have described her finan- cial difficulties, Mr. Hudson’s instructions that she write to Seal, and Mr. Hudson’s lie when he told Seal that she was in Chicago. Dana admitted that she did not know that Mr. Hud- son was scamming Seal and that she did not know anything about the scheme. 15 Thus, Dana’s testimony could only cor- roborate that she had financial difficulties, which was Mr. Hudson’s claimed motive to scam Seal. But a jury could just as easily find that Dana’s financial difficulties motivated Mr. Hudson to murder and to commit arson for money. Dana could not have offered testimony re- garding whether Mr. Hudson actually intended to commit these crimes. Nor could she have offered testimony refuting other evidence. 16 Even if Dana had testified, the evidence that Mr. Hudson merely intended to scam Seal would still have consisted solely of Mr. Hudson’s testimony. The absence of Dana’s testimony therefore does not “undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Conclusion For the foregoing reasons, the district court’s decision is affirmed. AFFIRMED

14 Id. at 39.

15 Id. at 178–79.

16 Cf. Toliver v. McCaughtry, 539 F.3d 766, 774–78 (7th Cir. 2008) (holding

that counsel’s deficiencies were prejudicial when counsel failed to call wit- nesses that would have offered unique testimony and testimony that would impeach that of a state witness).