Judges: Hamilton
Filed: Aug. 10, 2016
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 14-3482 KENNETH MORRIS, Petitioner-Appellant, v. BRYAN BARTOW, Respondent-Appellee. _ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 03-C-1078 — William C. Griesbach, Chief Judge. _ ARGUED SEPTEMBER 22, 2015 — DECIDED AUGUST 10, 2016 _ Before FLAUM, WILLIAMS, and HAMILTON, Circuit Judges. HAMILTON, Circuit Judge. In 2000, petitioner Kenneth Mor- ris shot and killed his friend Billy Smith.
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 14-3482 KENNETH MORRIS, Petitioner-Appellant, v. BRYAN BARTOW, Respondent-Appellee. _ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 03-C-1078 — William C. Griesbach, Chief Judge. _ ARGUED SEPTEMBER 22, 2015 — DECIDED AUGUST 10, 2016 _ Before FLAUM, WILLIAMS, and HAMILTON, Circuit Judges. HAMILTON, Circuit Judge. In 2000, petitioner Kenneth Mor- ris shot and killed his friend Billy Smith. ..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐3482
KENNETH MORRIS,
Petitioner‐Appellant,
v.
BRYAN BARTOW,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 03‐C‐1078 — William C. Griesbach, Chief Judge.
____________________
ARGUED SEPTEMBER 22, 2015 — DECIDED AUGUST 10, 2016
____________________
Before FLAUM, WILLIAMS, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. In 2000, petitioner Kenneth Mor‐
ris shot and killed his friend Billy Smith. The substantive issue
in this appeal is whether Morris was coerced to plead guilty
in state court to first‐degree reckless homicide. That issue lies
behind unusually complex layers of procedural issues that
have accreted over more than fifteen years. In the end, we
agree with the district court that Morris is not entitled to a
writ of habeas corpus on any theory. Morris was under strong
2 No. 14‐3482
pressures when he decided to plead guilty, but the evidence
does not show that his guilty plea was involuntary. Even
though he was represented by new counsel immediately after
pleading guilty, Morris and his new lawyer did not challenge
his guilty plea as involuntary in the state trial court. Nor did
Morris raise the issue with his appellate lawyer, who did not
deny Morris his right to effective assistance of counsel.
I. Factual and Procedural Background
A. The Shooting of Billy Smith and the Guilty Plea
On October 16, 2000, Kenneth Morris and his friend Billy
Smith were sitting in Morris’s car. Morris fired a handgun
once, hitting Smith in the head and killing him. Later that day,
Smith’s body was found in a Milwaukee alley where Morris
had left him. The State quickly charged Morris with one count
of second‐degree reckless homicide while using a deadly
weapon. After a preliminary hearing, the State raised the
charge to first‐degree reckless homicide while using a danger‐
ous weapon. Morris retained attorney Michael Backes to rep‐
resent him.
The case was set for trial on Monday, January 29, 2001.
That morning, attorney Backes explained to the court that
Morris suddenly wanted a new lawyer. Backes also said he
was not prepared for trial because he had understood until
just two days earlier that Morris planned to plead guilty to
first‐degree reckless homicide. When the court asked Morris
why he wanted another attorney, Morris responded that he
would “just feel better with a different attorney.”
The State objected to any delay, and the trial court denied
Backes’s motion to withdraw. Backes argued that he was not
prepared for trial and had not interviewed witnesses, and that
No. 14‐3482 3
the case was not old, although the State contended that it was.
The trial court then offered to postpone the trial for two days
to give Backes time to prepare. The court recessed the case
until that afternoon when it would conduct a hearing to de‐
termine whether Morris still wanted a jury trial. Before the re‐
cess, the prosecutor told the judge and the defense, contrary
to the State’s position some weeks earlier, that if the case went
to trial the State would seek leave of the court to increase the
charge to first‐degree intentional homicide. The judge did not
signal a view on that tactic but said he would address it in the
afternoon. The judge never acted on the prosecution request,
and the charge remained first‐degree reckless homicide.
During the recess, Morris and the State reached a plea
agreement. Morris agreed to plead guilty to first‐degree reck‐
less homicide, but without the enhancement for being armed.
In exchange for his plea, the prosecution also agreed to leave
sentencing to the trial court, without offering a specific rec‐
ommendation. The judge then conducted a thorough plea col‐
loquy with Morris under oath. Among other points covered
in the plea colloquy, Morris told the judge that no one had
made any threats or in any way forced him to plead guilty,
and that he was satisfied with attorney Backes and his repre‐
sentation. The judge then questioned attorney Backes, who
was also satisfied that the guilty plea was knowing and vol‐
untary. The judge concluded by finding that Morris’s guilty
plea was knowing and voluntary and adjudging him guilty.
After pleading guilty, Morris fired attorney Backes and
hired attorney Thomas Awen. Sentencing was set for April 11,
2001. At no point before or during sentencing did Morris or
his new lawyer move to withdraw his guilty plea or otherwise
4 No. 14‐3482
question the voluntariness of the guilty plea. The court lis‐
tened to extensive presentations by attorneys and witnesses,
including family members of both Billy Smith and Morris, as
well as a statement in allocution by Morris. After giving a
careful and thoughtful explanation of the tragedy in the case
and the reasons for the sentence, the trial judge sentenced
Morris to 30 years in prison and 20 years of extended super‐
vision.
B. Direct Appeal
The state public defender appointed attorney David J.
Lang to handle Morris’s appeal. Lang filed a no‐merit brief
pursuant to Wis. Stat. § (Rule) 809.32, which is Wisconsin’s
procedure for implementing Anders v. California, 386 U.S. 738
(1967). In the no‐merit report, Lang identified two potential
issues: (1) whether Morris might be able to challenge the va‐
lidity of his guilty plea, and (2) whether the trial court abused
its discretion in sentencing Morris. Lang reviewed the record,
including the thorough plea colloquy, and concluded there
would be no merit to any challenge to the validity of the guilty
plea. He also found there would be no merit to a challenge to
the sentence.
As required by Wisconsin law, attorney Lang sent Morris
a copy of the no‐merit report and an explanation of his right
to file his own brief disagreeing with the lawyer. Morris re‐
sponded by requesting from Lang copies of all transcripts and
court records. Lang replied that Morris would either need to
pay him for copies or could order them directly from the court
reporter.
On December 27, 2002, the Wisconsin Court of Appeals af‐
firmed Morris’s conviction and released Lang from future
No. 14‐3482 5
representation of Morris. The court said that Morris elected
not to respond to the no‐merit report, which was correct, but
Morris blamed his failure to respond on Lang’s failure to pro‐
vide transcripts and other records. The court explained that it
had conducted an independent review of the record as man‐
dated by Anders and Wis. Stat. § (Rule) 809.32(3), and it agreed
with Lang’s analysis, including that there was no basis for set‐
ting aside the guilty plea. Morris did not seek review of that
decision by the Wisconsin Supreme Court.
C. Federal Habeas Proceedings and Later State Proceedings
On November 4, 2003, Morris filed a pro se petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the dis‐
trict court challenging his guilty plea and the effectiveness of
his trial and appellate counsel. The district court denied Mor‐
ris’s petition for a writ of habeas corpus on March 14, 2007 on
grounds of procedural default. On September 18, 2007, we re‐
versed and remanded for further consideration, including
whether Morris had exhausted his state remedies. Federal
proceedings were stayed on remand while Morris pursued
additional remedies in state courts, during which he claimed
that he received ineffective assistance of appellate counsel
and that his guilty plea had been involuntary because it had
been coerced.
To pursue state remedies, Morris filed a state petition seek‐
ing to reinstate his direct appeal rights. The Wisconsin Court
of Appeals then directed the state trial court to conduct an ev‐
identiary hearing on Morris’s claim for ineffective assistance
of appellate counsel. During the evidentiary hearing in 2008,
both Morris and attorney Lang testified about their commu‐
nications with each other. The state trial court entered find‐
ings of fact. App. 150–54. Those factual findings are presumed
6 No. 14‐3482
correct under 28 U.S.C. § 2254(e)(1). The trial court found that
before Lang filed his no‐merit report, he had communicated
with Morris about the issues he wanted to raise and that Mor‐
ris wanted Lang to seek a reduced sentence. The trial court
also found that Morris never complained to Lang about any
coercion to plead guilty, and that if Morris had complained of
coercion, Lang would not have failed to respond.
The state appellate court eventually determined that Lang
had provided deficient performance by refusing to provide
the transcripts and records to Morris, but also that Morris had
not shown any resulting prejudice. See Wis. Stat. § (Rule)
809.32(1)(b)(2) (2007–08). Morris had been present for all hear‐
ings for which there were transcripts, and those transcripts
did not show a basis for setting aside his guilty plea, particu‐
larly in view of the thorough guilty plea colloquy leading to
the trial court’s finding that the plea was knowing and volun‐
tary. And if Morris had felt coerced into pleading guilty, he
could have said so and explained why.
Ultimately, the state courts rejected the ineffective assis‐
tance of appellate counsel claim on the merits and rejected the
stand‐alone coercion claim as barred by Morris’s failure to
raise it earlier. Morris then reactivated the federal case and
filed an amended federal petition on July 31, 2012. The district
court issued a thorough opinion denying relief.
II. Analysis
Morris appealed, and we issued a certificate of appealabil‐
ity on four questions: (1) whether Morris’s guilty plea was co‐
erced, (2) whether his appellate counsel was ineffective for
failing to raise the coercion issue in the direct appeal, (3)
whether either claim is procedurally defaulted, and (4) if so
No. 14‐3482 7
whether any exception to the rule of procedural default ap‐
plies here.
As the case comes to us on appeal, Morris asserts two in‐
tertwined violations of his constitutional rights: first, a claim
that his appellate attorney provided ineffective assistance of
counsel by failing to argue in the direct appeal that his guilty
plea was coerced, and second, a stand‐alone claim that his
guilty plea was coerced. We address first the claim of ineffec‐
tive appellate counsel, where the state courts decided the
claim on the merits and our review is deferential. We then
turn to the stand‐alone claim of a coerced guilty plea, which
the State asserts is subject to a procedural default. We review
de novo the district court’s treatment of legal issues, and we
review findings of fact for clear error. Denny v. Gudmanson,
252 F.3d 896, 900 (7th Cir. 2001); Ellsworth v. Levenhagen, 248
F.3d 634, 638 (7th Cir. 2001).
A. Effective Assistance of Appellate Counsel
Morris asserts that his lawyer who filed the no‐merit re‐
port in his direct appeal provided ineffective assistance of
counsel. We focus first on the scope of this claim that is before
us and the applicable standard of review. Morris asserts that
attorney Lang provided ineffective assistance in two ways.
First, he says that Lang failed to comply with his procedural
obligations under Wisconsin law by refusing his request for
the relevant transcripts and court records for use in preparing
a response to the lawyer’s no‐merit report. That particular
claim is beyond the scope of the certificate of appealability
that we issued.1 Second, Morris asserts that Lang’s assistance
1 As noted, the state courts held that Lang’s performance was deficient in
this respect but that his failure to provide the transcripts and records did
8 No. 14‐3482
was ineffective because he did not identify and raise in the
direct appeal the claim that Morris was coerced to plead
guilty. That claim is within the scope of our certificate of ap‐
pealability and is properly before us.
The state courts considered this claim of ineffective assis‐
tance. The Wisconsin Court of Appeals applied the correct
federal constitutional standard from Strickland v. Washington,
466 U.S. 668 (1984). Wisconsin ex rel. Morris v. Pollard, No.
2008AP1844‐W, *4–5 (Wis. App. June 19, 2009), available at
App. 147–48. We can grant relief on this claim only if the state
court decision was contrary to or an unreasonable application
of Supreme Court decisions or based on an unreasonable de‐
termination of the facts. 28 U.S.C. § 2254(d). Strickland re‐
quires proof of both deficient performance and resulting prej‐
udice. 466 U.S. at 687. The Court also cautioned: “Judicial
scrutiny of counsel’s performance must be highly deferen‐
tial,” avoiding the temptation to use hindsight to second‐
guess decisions that counsel made at the time. Id. at 689.
Applying the Strickland standard, the state court found no
deficient performance in Lang’s failure to argue in the direct
appeal that Morris’s guilty plea was coerced. The appellate
court’s decision on this claim was driven by the findings of
fact the state trial court made after hearing testimony from
both Morris and Lang. Morris’s guilty plea colloquy with the
not cause prejudice to Morris, as required for a successful claim for inef‐
fective assistance of counsel under Strickland v. Washington, 466 U.S. 668
(1984). If we were to reach that issue, it would be difficult to find that the
state court’s decision on the lack of prejudice was an unreasonable appli‐
cation of Supreme Court precedent or based on an unreasonable determi‐
nation of the facts, as needed to obtain federal habeas relief. 28 U.S.C.
§ 2254(d).
No. 14‐3482 9
trial judge was thorough. It offers no support for a claim of
coercion. The claim of coercion requires Morris to overcome
the strong “presumption of verity” that courts give to a de‐
fendant’s sworn answers in the colloquy. See United States v.
Ellison, 835 F.2d 687, 693 (7th Cir. 1987). The state trial court
found that Morris never told Lang that he felt coerced or pres‐
sured into pleading guilty. The state appellate court also
found that the appellate record did not support a claim of co‐
ercion. The state appellate court also found no deficient per‐
formance, taking into account the facts that Morris did not
complain to Lang about feeling coerced beyond the record
and that Morris did not indicate any coercion during the plea
colloquy.
When a lawyer files an Anders brief or no‐merit report in a
criminal appeal, the standard under the Sixth Amendment for
deficient performance is whether “a reasonably competent at‐
torney would have found one nonfrivolous issue warranting
a merits brief.” Smith v. Robbins, 528 U.S. 259, 288 (2000); see
also Shaw v. Wilson, 721 F.3d 908, 915–16 (7th Cir. 2013). In this
case, the appellate record on the direct appeal included the
plea colloquy and written documents. All indicated that Mor‐
ris’s guilty plea was voluntary. The record also included ref‐
erences to the circumstances that Morris has been arguing
show coercion: the lawyer who was not prepared for trial and
whose motion to withdraw was denied, the denial of a delay
of more than two days in the trial, and the prosecutor’s pro‐
posal to try Morris for first‐degree intentional homicide.
Those circumstances tend to support a claim of coercion.
What was missing at the time, though, was any suggestion by
Morris that he had actually been coerced, so that his sworn
10 No. 14‐3482
answers in the plea colloquy should be disregarded and he
should face trial instead.2
In the absence of any claim by Morris that he had been co‐
erced into pleading guilty, the state courts did not apply
Strickland unreasonably in finding that attorney Lang’s per‐
formance was not deficient by reason of his failure to argue
that Morris’s guilty plea had been coerced. We are not sug‐
gesting that Morris had to use the word “coerce” or had to
recognize as a layperson that his guilty plea was legally inva‐
lid. The problem is that nobody knew Morris’s state of mind
better than Morris. The state courts’ factual findings amount
to a finding that there is no credible evidence that Morris had
given attorney Lang any information about his own state of
mind when pleading guilty that would have called the valid‐
ity of the guilty plea into question. The state courts’ rejection
of the claim for ineffective assistance of appellate counsel does
not justify federal habeas relief.
2 We agree with the state courts that the prosecutor’s proposal to increase
the charge to first‐degree intentional homicide did not amount to prose‐
cutorial misconduct. The prosecutor stated his clear intention at the pre‐
liminary hearing to try Morris only on first‐degree reckless homicide, but
that was not part of a bargain with the defense, nor could the defense show
any detrimental reliance or any legally binding commitment not to change
positions. Also, based on the prosecutor’s statement in the preliminary
hearing, it would not have been at all surprising for the trial judge to have
rejected out of hand the prosecutor’s attempt to raise the charge on the
day of the trial. Because Morris decided to plead guilty before the court
addressed that attempt, we cannot know what would have happened.
No. 14‐3482 11
B. The Stand‐Alone Claim of a Coerced Guilty Plea
1. The State’s Procedural Default Argument
The procedural issues over the fifteen‐year course of Mor‐
ris’s attacks on his guilty plea have seemed kaleidoscopic,
shifting at every stage of the many state and federal proceed‐
ings. In this appeal, the State has abandoned several of the
procedural default findings of the state courts and the district
court. See Appellee’s Br. at 19 n.3. The State argues instead
that Morris’s stand‐alone claim, that his guilty plea was not
voluntary because it was coerced, is procedurally defaulted
because the Wisconsin Court of Appeals implicitly rejected
that claim on the merits in the direct appeal (where attorney
Lang filed the no‐merit report), and Morris did not seek re‐
view by the Wisconsin Supreme Court, as required by O’Sul‐
livan v. Boerckel, 526 U.S. 838 (1999). We disagree with the
premise of this procedural default argument, whether the
state appellate court implicitly decided on the merits a claim
that was not even raised in the Anders brief or no‐merit report.
The no‐merit report filed by Lang did not assert that Mor‐
ris’s plea was coerced. The report raised in general terms the
validity of the guilty plea as a potential issue and found no
basis for a challenge to it, based on the appellate record. The
Wisconsin Court of Appeals reviewed the guilty plea ques‐
tionnaire, the waiver‐of‐rights form, and the transcript of the
plea colloquy and concluded that the trial court had complied
with the requirements for a valid plea and that “challenging
the validity of Morris’s guilty plea would lack arguable
merit.” Neither the no‐merit report nor the appellate opinion
addressed whether the combination of the denial of Morris’s
request to remove attorney Backes, the attorney’s lack of prep‐
aration, the denial of a delay of more than two days, and the
12 No. 14‐3482
prosecution’s proposal to raise the charge to intentional hom‐
icide coerced Morris to plead guilty.
The State’s theory is that because the record included signs
of all four of those arguably coercive circumstances, and be‐
cause the appellate court was obliged to search the record for
any arguable legal issues, its decision to accept the no‐merit
report amounted to an implicit rejection of Morris’s current
stand‐alone coercion claim on the merits. If that were correct,
the argument continues, Morris then defaulted that claim by
failing to seek review by the Wisconsin Supreme Court. See
Boerckel, 526 U.S. at 839–40 (to satisfy requirement to exhaust
state remedies, prisoner must present his claims to state su‐
preme court in petition for discretionary review).
We do not believe we should read the state appellate deci‐
sion as a decision on the merits of a claim that was never pre‐
sented to that court. The United States Supreme Court ex‐
plained in interpreting 28 U.S.C. § 2254(d): “A judgment is
normally said to have been rendered ‘on the merits’ only if it
was ‘delivered after the court Y heard and evaluated the evi‐
dence and the parties’ substantive arguments,’” Johnson v. Wil‐
liams, 568 U.S. —, —, 133 S. Ct. 1088, 1097 (2013), quoting
Black’s Law Dictionary 1199 (9th ed. 2009) (emphasis added
in Williams), and that a decision on the merits requires a deci‐
sion on “[t]he intrinsic rights and wrongs of a case as determined
by matters of substance, in distinction from matters of form.’”
Id., quoting Webster’s New Int’l Dictionary 1540 (2d ed. 1954)
(emphasis added in Williams). The state appellate court’s si‐
lence concerning a claim not actually presented to it does not
No. 14‐3482 13
amount to a decision on the merits, for purposes of § 2254(d)
or Boerckel.3
This approach is consistent with the state courts’ decisions
themselves. The state appellate court did not believe it had
decided the merits of the stand‐alone coercion claim. When
Morris later presented his coercion claim to the state courts,
the appellate court found in 2011 that the claim had not been
presented, let alone decided, in the direct appeal. App. 134–
42 (finding that Morris had not justified his earlier failure to
raise the issue, so “we do not address the merits of Morris’s
claim that his guilty plea was not knowing, intelligent, and
voluntary”). Accordingly, we consider the stand‐alone coer‐
cion claim under 28 U.S.C. § 2254(a), without deference to the
state court’s rejection of the claim on procedural grounds.4
3 This case does not present the different sort of problem that arises when
a state prisoner argues that he implicitly presented his federal‐law claim
to the state courts by raising a closely related state‐law claim. We have
recognized that such a state‐law claim can amount to fair presentment of
federal‐law claims in some circumstances. See, e.g., Ellsworth v. Levenha‐
gen, 248 F.3d 634, 639 (7th Cir. 2001); Kurzawa v. Jordan, 146 F.3d 435, 441–
42 (7th Cir. 1998). When a habeas petitioner relies on such implicit pre‐
sentment of a federal‐law claim, it may well be appropriate to treat the
state courts’ rejection of the explicit state‐law claim as an implicit decision
on the merits of the implicit federal‐law claim. See Schmidt v. McCulloch,
823 F.3d 1135, 1143 (7th Cir. 2016) (Hamilton, J., concurring in judgment).
These considerations do not apply when the State argues there has been
an implicit decision on the merits of a claim that was not actually pre‐
sented.
4 The State has not argued on appeal that the procedural bar found in the
state appellate court’s 2011 decision amounted to an adequate and inde‐
pendent state‐law ground for rejecting Morris’s coercion claim. See Ap‐
pellee’s Br. at 19 n.3.
14 No. 14‐3482
2. The Merits of the Coerced Guilty Plea Claim
There is no doubt that Morris was under tremendous pres‐
sure on January 29, 2001. The combination of his lawyer’s lack
of preparation for trial and the trial court’s refusal to delay the
trial by more than two days could present a claim of coercion
in other circumstances. Two days to prepare would ordinarily
seem inadequate, of course. As the state courts and district
court have recognized, though, this would have been an unu‐
sually simple homicide trial. There was no doubt that Morris
had pulled the trigger to shoot and kill Smith. Morris himself
was the only witness to the shooting. Morris has not identified
additional witnesses or lines of inquiry that his lawyer would
have needed to pursue to prepare adequately for trial. Nor
did his lawyer object to the trial judge that two days would
not be enough.
Most compelling is Morris’s failure, even when repre‐
sented by a newly retained lawyer, to seek to withdraw his
guilty plea in the months before sentencing. Morris’s claim of
coercion resulting from attorney Backes’s lack of trial prepa‐
ration and the trial court’s refusal to delay for more than two
days would have more force if, shortly after the guilty plea
but before sentencing, Morris and his new lawyer had moved
to withdraw his plea based on coercion, pointing to the pow‐
erful pressures on him to plead guilty on January 29th. Per‐
haps such a motion would have offered an explanation suffi‐
cient to overcome the presumption of truth that applies to a
defendant’s sworn answers to a judge during a plea colloquy.
See, e.g., United States v. Collins, 796 F.3d 829, 834 (7th Cir.
2015); Ellison, 835 F.2d at 693.
But if Morris actually felt coerced, despite his satisfactory
answers during the plea colloquy, only he could say so. As we
No. 14‐3482 15
have said, no one else knew his state of mind better than he
did. With his new attorney, Awen, whose effectiveness has
never been questioned, Morris went forward under the plea
and argued for a modest sentence. To the extent that the orig‐
inal attorney, Backes, might have failed to investigate the case
sufficiently, the second attorney, Awen, was given as much
time as he needed to investigate the case before sentencing,
where Morris’s state of mind at the time of the shooting was a
key issue.
Even with his new attorney, Morris never moved to set
aside the guilty plea and never called it into question. Not un‐
til after the trial judge imposed a relatively severe sentence
and the no‐merit appeal had concluded did Morris begin
claiming that his guilty plea had been coerced. Then we also
have the findings of the state courts regarding Morris’s deal‐
ings with his appellate attorney Lang. Those findings bind us
as long as they are reasonable, and they are. They tell us that
Morris never communicated to his appellate lawyer Lang that
he thought he had been pressured unfairly into pleading
guilty. In light of all these circumstances, we conclude that
Morris has not shown that acceptance of his guilty plea vio‐
lated his federal constitutional rights. See 28 U.S.C. § 2254(a).
* * *
The state courts’ rejection of Morris’s claim that his appel‐
late lawyer provided ineffective assistance in his direct appeal
was not contrary to or an unreasonable application of Su‐
preme Court decisions or based on an unreasonable view of
the facts. Morris’s stand‐alone claim that his guilty plea was
coerced is subject to de novo review, but we find no violation
16 No. 14‐3482
of his federal constitutional rights. The judgment of the dis‐
trict court denying Morris’s petition for a writ of habeas cor‐
pus is AFFIRMED.