Convicted Cop Killer Appeals

which asked the federal district court to return his case show that his attorney performed below minimal profes- trying first-degree intentional homicide cases, including bullet lodged behind his right clavicle. it was recovered evaluate the conduct from counsel's perspective at the tion in the official reports." the wisconsin supreme homicide while armed with a dangerous weapon. he mcafee's right to remain silent at trial, without hearing michael thurmer, united states court of appeals ability sufficient to undermine confidence in the out- she was "rattled" and had made an "overzealous counsel "need not be perfect, indeed not even very good, the parties stipulated to submitting the lesser-included a performance and a prejudice standard. more on this wisconsin court of appeals unreasonably applied the determined by the supreme court of the united states. no. 09-1230 7 show that there is a reasonable probability that the must overcome the strong presumption that counsel's our review is under the antiterrorism and effective gunshot wounds. the fatal shot entered tanner's right sumption of reasonableness by clear and convincing death penalty act (aedpa). as directed by aedpa, we homicide for killing officer tanner. to state court for a new trial. ously argue for conviction only on the lesser-included sonable application of, clearly established federal law as for her former client. as a result, her testimony that running north. ketterhagen continued firing until he appealing the denial of a petition for habeas corpus 12-8-09 later it was determined that tanner suffered three of the facts or was contrary to, or involved an unrea- appeal from the united states district court port a writ of habeas corpus." allen v. chandler, 555 not seem all that believable. the state judge found that of her client. the wisconsin trial judge agreed. he case against mcafee was overwhelming. he ran from the gun. given the facts established at trial, we can't see 689, 104 s. ct. 2052, quoting michel v. louisiana, 350 u.s. 91, times. at least one of his bullets hit tanner. and after tion was affirmed by the wisconsin court of appeals in ones where a lesser-included charge of reckless is a lesser-included offense of first-degree intentional homicide. 4 no. 09-1230 tanner chased mcafee on foot while ketterhagen re- a petitioner, like mcafee here, can only rebut the pre- intentional homicide. mcafee claims that his lawyer court declined to review the case. as we mentioned, the petition. crossed in a milwaukee alley on a september night in received a sentence of life imprisonment. today, 13 years investigating drug activity, they tried to detain mcafee his arms and fired several shots at tanner, who fell back- bullets he fired hit mcafee, but police soon discovered a "friendly fire" defense was strategic. mcafee's counsel under wisconsin law whoever causes the death of another1 human being under circumstances which show utter minations made in state court are presumed to be correct. two shared a number of similarities: both were in their late squad car and started shooting at mcafee as he took off ineffective. evans, circuit judge. the paths of two young people to be constitutionally adequate." dean v. young, 777 offense option to the jury. 2 no. 09-1230 in federal habeas proceedings, all factual deter- she testified "in a manner which appeared to be cal- as true. was a seasoned defense attorney with experience in the shootout, police found him hiding in a closet with included offense. sel's errors affected the outcome of the proceeding. in a backyard fence and position himself south of the was constitutionally ineffective because she relied on a no. 09-1230 5 human being with intent to kill that person or another is establishing that a state court's application of the found her testimony of "limited usefulness to the court" as were on different life trajectories: tanner, 29, was in his the police. he fired his gun at the officers numerous petitioner-appellant, "wide range of professionally competent assistance." id. at no. 09-1230 his trial counsel was constitutionally ineffective. that has two prongs, both of which must be satisfied to 690. plus, the "friendly fire" defense might well have not mcafee--fired the fatal bullet and that the police and "only a clear error in applying strickland will sup- `might be considered sound trial strategy.' " 466 u.s. at soon more police arrived until as many as 90 officers this was the kind of case--yes, there are some--where federal district court denied mcafee's petition. suit. to keep up with the chase, ketterhagen drove into another alley on the west side of the street. as he respondent-appellee. fied. therefore, seeking acquittal fell well within the tanner, was convicted of first-degree intentional before posner, manion, and evans, circuit judges. of mcafee's trial counsel, going for broke was not an drove north, he saw mcafee emerge from an opening in petitioner to show that his state trial counsel's per- strickland standard in rejecting his claim of ineffective argued september 17, 2009--decided december 8, 2009 1996. one was wendolyn tanner, the other was antonio served in the military. but that night in 1996, the two men patrol in a squad car on milwaukee's north side. while partner and shouted into his radio, "officer down! officer review the decision of the last state court to adjudicate a tially fatal" shot severed tanner's spinal cord, and the sional standards and that the substandard performance assistance of counsel. we disagree. with respect to strickland's performance prong, mcafee lost sight of mcafee, at which point he ran to his fallen because mcafee argues that he was denied his sixth how a jury would have given mcafee a pass. perhaps for the eastern district of wisconsin. opening to lie in wait for tanner. as tanner entered the 399 (7th cir. 2009). we may grant relief to a petitioner choice but to convict him of first-degree intentional 101, 76 s. ct. 158 (1955). strategic choices are "virtually accordingly, we affirm the denial of mcafee's habeas homicide was submitted to the jury. she spent many prejudiced him. strickland, 466 u.s. at 687. under aedpa, v. she should have used a "more general approach" and cide. wis. stat. ann. � 940.02(1). first-degree reckless homicide succeed on an ineffectiveness claim. a defendant must "doomed" defense of "friendly fire" and failed to strenu- instead, as strickland dictates, we make "every effort . . . to his side of the story about what happened in that mil- down!" tanner was pronounced dead at the scene. the relevant standard is a very familiar one: strickland v. 8 no. 09-1230 williams v. taylor, 529 u.s. 362, 376-77 (2000). during postconviction proceedings, and that determina- the jury to convict on the lesser-included offense, rather than go for broke by seeking an acquittal on the more lawyer appeared to be falling on her sword for the sake fourth year as a city of milwaukee police officer, while habeas petitioner's claim. starkweather v. smith, 574 f.3d addressed both "friendly fire" and reckless homicide. from tanner's body and traced to the gun mcafee had board with it. side, passed through his heart and lungs, and exited the with him in the closet when he was apprehended. the attorney conceded error in hopes of securing a new trial after tanner was put to rest, mcafee is before us admitted to firing his gun but not to actually shooting unreasonable strategy. as the wisconsin court of appeals come the presumption, so here are the facts we accept 6 no. 09-1230 hours developing her trial strategy, and mcafee was on falsified testimony to cover up the truth. but the state ports but one conclusion: the decision to go with the not find prejudice. to establish prejudice, mcafee must up in milwaukee; both graduated from high school; both serious charge. but we do not second-guess an no. 09-1230 3 ment claim, his attorney testified that upon reflection, mcafee. later, a state court judge would observe that the no. 06 c 1200--rudolph t. randa, judge. only if the state court's adjudication of a petitioner's mcafee, 28, recently finished serving the in-custody trial counsel's performance was not constitutionally at trial, mcafee's attorney argued that ketterhagen-- source of the bullet was not identified. another "poten- police found mcafee with his gun, hiding in a closet. result of the trial would have been different but for coun- a 2005 opinion marked "not recommended for publica- evidence. 28 u.s.c. � 2254(e)(1). mcafee has not over- probably inappropriate indictment of a police officer" did guilty of first-degree intentional homicide. wis. stat. ann. at the postconviction hearing on mcafee's sixth amend- who a state court jury found responsible for killing alley through the opening in the fence, mcafee extended formance was objectively unreasonable and that coun- washington, 466 u.s. 668, 688 (1984), requires a habeas offense of first-degree reckless homicide. however,1 mained in the squad car. as soon as tanner exited the antonio mcafee, � 940.01(1). whoever recklessly causes the death of another waukee alley 13 years ago, the jury probably had little in hindsight, it might well have been better to urge up" theory and found mcafee guilty of first-degree for the seventh circuit time." id. at 689. when we put ourselves in the shoes on the night of september 17, 1996, two milwaukee culated to aid the defendant." the judge thought the constitutional claim was based on an unreasonable view mcafee running across 21st street with tanner in pur- swayed a few jurors and forced a compromise verdict--not wards to the ground. ketterhagen jumped out of the disregard for human life is guilty of first-degree reckless homi- the home of mcafee's aunt. upon searching the house, in the amendment right to the effective assistance of counsel, there simply is no viable defense. while we respect claim was aired and rejected by the state trial judge f.3d 596, 600 (7th cir. 2009). mcafee argues that the deemed to be a flesh wound. vehicle, ketterhagen drove out of the alley and spotted trail of blood, which led them to a house on 22nd street, mcafee's federal habeas petition rests on a claim that f.2d 1239, 1245 (7th cir. 1985). as we noted, strickland attorney's performance with the benefit of hindsight. unchallengeable." id. at 690. the record in this case sup- but again, this kind of reflection after the fact is a little later, as we start our review with the facts. twenties; both were african-american males; both grew counsel. moreover, the state argued that mcafee's portion of a sentence he received for armed robbery. even if we could find deficient performance, we could third shot passed through tanner's left arm and was sel's shortcomings. a reasonable probability is a prob- other words, mcafee must, under strickland, meet both conduct was reasonable and that the "challenged action strickland standard was "unreasonable" is a tall task, come. mcafee's claim fails this prong, too. the state's in an alley just east of 21st street, but mcafee fled north. noted, ketterhagen was the sole eyewitness; mcafee tanner; and the source of the fatal bullet was not identi- were at the scene. ketterhagen didn't know if any of the left side of his body, severing his aorta. however, the police officers, tanner and brian ketterhagen, were on tanner was shot and killed in the alley that night. mcafee, guilty of intentional homicide but guilty on the lesser- court jury didn't believe this "friendly fire/police cover- irrelevant to the question of ineffective assistance of