Whyte v. Winkleski

             UNITED STATES DISTRICT COURT                            
            EASTERN DISTRICT OF WISCONSIN                            


PETER WHYTE,                                                              

     Petitioner,                                                     

v.                                 Case No. 12-CV-486                

DAN WINKLESKI,                                                            

     Respondent.                                                     


DECISION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS             


Peter Whyte, a prisoner in Wisconsin custody, seeks a writ of habeas corpus pursuant 
to 28 U.S.C. § 2254. (Docket # 23.) Whyte was convicted of second-degree intentional 
homicide  and  sentenced  to  sixty  years  in  prison,  consisting  of  forty  years  of  initial 
confinement followed by twenty years of extended supervision. (Id. at 2.) Whyte alleges that 
his conviction and sentence are unconstitutional. For the reasons below, the petition for writ 
of habeas corpus will be denied and the case dismissed.                   
                     BACKGROUND                                      

As summarized by the Wisconsin Court of Appeals, the State charged Whyte with 
first-degree intentional homicide arising from the August 20, 2006 stabbing death of his long-
time girlfriend, Suzanne Weiland. (State of Wisconsin v. Whyte, Appeal No. 2009AP1245-CR 
¶ 2 (Wis. Ct. App. Oct. 26, 2010), Docket # 31-5.) The doctor who performed Weiland’s 
autopsy testified that Weiland, who was 5’7” tall and weighed 150 pounds, had a blood 
alcohol concentration of 0.31% at the time of her death. (Id. ¶ 2.) Weiland had suffered 
nineteen knife injuries, several of which were significant enough to have caused her death if 
left untreated. (Id.) Three of the deep stab wounds were to her neck and would have caused 
death within minutes of their infliction. (Id.) The doctor opined that Weiland died from 
exsanguination due to multiple stab wounds. (Id.)                         
Whyte, who was 6’4” tall and weighed 283 pounds, testified he had been involved 

with Weiland since 1986, living together on and off throughout their relationship. (Id. ¶ 3.) 
According to Whyte, Weiland had a history of staying out all night without him and coming 
home intoxicated. (Id.) Whyte testified that on three occasions in the month leading up to 
Weiland’s death, she came home intoxicated and said she wanted to kill Whyte. (Id.) The 
next morning, however, she acted as if nothing had happened. (Id.)        
On the night of August 20, 2006, the couple returned home after an evening of drinking 
and Weiland became angry when Whyte declined to have sex. (Id. ¶ 4.) Whyte consequently 
took a walk outside for approximately twenty to forty minutes. (Id.) Whyte testified that 
shortly after he returned home, Weiland came at him with a knife and stabbed him. (Id.) 

Whyte further claimed that when he indicated he needed to go to the hospital, Weiland said, 
“We are going to see Ash”—Weiland’s dog that had been euthanized earlier that year. (Id.) 
Weiland then attacked Whyte again, stabbing him in the stomach. (Id.) At that point, Whyte 
grabbed the knife and knocked Weiland back with his elbow. (Id.) As Whyte pulled the knife 
out of his belly, Weiland stated, “I am going to kill you.” (Id.) Weiland then came at Whyte 
with a butcher knife in her right hand. (Id.) Whyte grabbed Weiland’s hand and, as she started 
to turn, Whyte stabbed her twice in the back. (Id.)                       
The couple struggled to the floor, each with a knife. (Id. ¶ 5.) Whyte testified that as 

they struggled, he began stabbing Weiland and continued until she stopped struggling. (Id.) 
Whyte indicated he was afraid for his life and believed Weiland intended to kill him. (Id.) 
Whyte further testified that he was badly wounded and having trouble breathing. (Id.) He 
ultimately passed out and when he awoke, Weiland was dead next to him. (Id.) Whyte 
testified that he “freaked out” and attempted to kill himself by cutting across his wrists. (Id.) 
He then walked out of the house to the pier and, after thinking of his son, returned home. (Id.) 

Whyte indicated he passed out a second time and when he awoke, he crawled over to 
Weiland’s body where he passed out again. (Id.) Upon waking, he moved to a family room 
recliner and called emergency personnel. (Id.) A surgeon who treated Whyte testified he 
suffered several knife wounds to his chest and abdomen, causing injuries to his lungs, 
stomach, liver, and spleen. (Id.)                                         
Whyte did not dispute that Weiland died as a result of the fight between them; 
however, he claimed he was acting in self-defense. (Id. ¶ 6.) The jury was instructed on both 
first-degree intentional homicide and second-degree intentional homicide, as follows: 
Peter Whyte is guilty of first-degree intentional homicide if [he] caused the 
death of Suzanne Weiland with the intent to kill and did not actually believe 
the force used was necessary to prevent imminent death or great bodily harm 
to himself.                                                          

Peter Whyte is guilty of second-degree intentional homicide if [he] caused the 
death of Suzanne Weiland with the intent to kill, and actually believed the force 
used was necessary to prevent imminent death or great bodily harm to himself, 
but his belief was unreasonable.                                     

(Id. ¶ 12.) The jury convicted Weiland of second-degree intentional homicide. (Id. ¶ 6) The 
court imposed a sixty-year sentence consisting of forty years’ initial confinement and twenty 
years’ extended supervision. (Id.)                                        
On direct appeal, Whyte argued that the admission of certain hearsay statements by 
Weiland violated his right to confrontation. (Id. ¶ 7.) The court of appeals affirmed the 
judgment on October 26, 2010 (id.) and the Wisconsin Supreme Court denied review (Docket 
# 31-8).                                                                  
Whyte  then  filed  a  motion  for  post-conviction  relief  in  the  circuit  court  raising 
numerous  claims  regarding  the  fact  that  he  was  required  to  wear  a  stun  belt  at  trial, 

prosecutorial misconduct, erroneous admission of other-acts evidence, ineffective assistance 
of trial and appellate counsel, and entitlement to a new trial in the interest of justice. (Docket 
# 31-12 ¶ 3.) The court of appeals upheld denial of the post-conviction motion on May 12, 
2015 (Docket # 31-12) and the Wisconsin Supreme Court denied review (Docket # 31-16). 
Whyte then filed a pro se petition for a writ of habeas corpus in state court alleging ineffective 
assistance of appellate counsel in his 2009 appeal, which the court of appeals denied on March 
31, 2016. (Docket # 31-21.) The Wisconsin Supreme Court again denied review. (Docket # 
24.)                                                                      
Whyte filed a petition for a writ of habeas corpus in this court in May 2012. (Docket 
# 1.) On October 11, 2012 I stayed the proceedings pending exhaustion of Whyte’s claims at 

the state level. (Docket # 16.) On February 15, 2016, Whyte filed an amended petition. 
(Docket # 23.) On September 1, 2016, I lifted the stay. (Docket # 27.) Whyte’s habeas petition 
is now fully briefed and ready for resolution.                            
                 STANDARD OF REVIEW                                  
Whyte’s petition is governed by the Antiterrorism and Effective Death Penalty Act 
(“AEDPA”). Under AEDPA, a writ of habeas corpus may be granted if the state court 
decision  on  the  merits  of  the  petitioner’s  claim  was  (1)  “contrary  to,  or  involved  an 
unreasonable application of, clearly established Federal law, as determined by the Supreme 
Court of the United States,” 28 U.S.C. § 2254(d)(1); or (2) “based on an unreasonable 
determination of the facts in light of the evidence presented in the State court proceeding,” 28 
U.S.C. § 2254(d)(2).                                                      
A state court’s decision is “contrary to . . . clearly established Federal law as established 
by the United States Supreme Court” if it is “substantially different from relevant [Supreme 

Court] precedent.” Washington v. Smith, 219 F.3d 620, 628 (7th Cir. 2000) (quoting Williams 
v. Taylor, 529 U.S. 362, 405 (2000)). The court of appeals for this circuit recognized the narrow 
application of the “contrary to” clause:                                  
[U]nder the “contrary to” clause of § 2254(d)(1), [a court] could grant a writ of 
habeas corpus . . . where the state court applied a rule that contradicts the 
governing law as expounded in Supreme Court cases or where the state court 
confronts facts materially indistinguishable from a Supreme Court case and 
nevertheless arrives at a different result.                          

Washington, 219 F.3d at 628. The court further explained that the “unreasonable application 
of” clause was broader and “allows a federal habeas court to grant habeas relief whenever the 
state court ‘unreasonably applied [a clearly established] principle to the facts of the prisoner’s 
case.’” Id. (quoting Williams, 529 U.S. at 413).                          
To be unreasonable, a state court ruling must be more than simply “erroneous” and 
perhaps more than “clearly erroneous.” Hennon v. Cooper, 109 F.3d 330, 334 (7th Cir. 1997). 
Under the “unreasonableness” standard, a state court’s decision will stand “if it is one of 
several equally plausible outcomes.” Hall v. Washington, 106 F.3d 742, 748–49 (7th Cir. 1997). 
In Morgan v. Krenke, the court explained that:                            
Unreasonableness  is  judged  by  an  objective  standard,  and  under  the 
“unreasonable application” clause, “a federal habeas court may not issue the 
writ simply because that court concludes in its independent judgment that the 
relevant state-court decision applied clearly established federal law erroneously 
or incorrectly. Rather, that application must also be unreasonable.”   
232 F.3d 562, 565–66 (7th Cir. 2000) (quoting Williams, 529 U.S. at 411), cert. denied, 532 U.S. 
951 (2001). Accordingly, before a court may issue a writ of habeas corpus, it must determine 
that the state court decision was both incorrect and unreasonable. Washington, 219 F.3d at 
627.                                                                      

Habeas relief is available only for state court decisions that are contrary to federal law; 
this court may not review whether a state court properly applied its own state laws. Estelle v. 
McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the province of a federal habeas court to 
reexamine state-court  determinations on state-law questions.”). “The operative  decision 
under review is that of the last state court to address a given claim on the merits.”1 Harris v. 
Thompson, 698 F.3d 609, 623 (7th Cir. 2012) (citing Greene v. Fisher, 565 U.S. 34 (2011)).  
                       ANALYSIS                                      
Whyte’s amended petition argues that he is entitled to a writ of habeas corpus on four 
grounds: (1) admission of Weiland’s statements at trial violated the Confrontation Clause, (2) 

the visible use of a stun belt throughout trial violated his constitutional rights, (3) his trial 
counsel was ineffective, and (4) his appellate counsel was ineffective. (Docket # 23 at 6–9.)  
In his brief, Whyte argues that the visible use of a stun belt without adequate justification 
violated his constitutional rights, trial counsel was ineffective, and appellate counsel was 
ineffective. Whyte does not renew his Confrontation Clause claim in either his opening brief 
or his reply brief. Accordingly, I deem this claim abandoned and will address the remaining 
three grounds. See Duncan v. State of Wis. Dept. Health and Family Servs., 166 F.3d 930, 934 (7th 


1 There are three operative decisions in this case: (1) the court of appeals’ decision of October 26, 2010 
adjudicating Whyte’s Confrontation Clause claim on direct appeal (Docket # 31-5); (2) the court of 
appeals’ decision of May 12, 2015 adjudicating Whyte’s post-conviction motion (Docket # 31-12); 
and (3) the court of appeals’ decision of March 31, 2016 adjudicating Whyte’s claim of ineffective 
assistance of appellate counsel (Docket # 31-21).                         
Cir. 1999) (explaining that arguments a party fails to develop in its brief are deemed waived 
or abandoned); Wilson v. Giesen, 956 F.2d 738, 741 (7th Cir. 1992); Egert v. Conn. Gen. Life Ins. 
Co., 900 F.2d 1032, 1035 (7th Cir. 1990).                                 
1.   Stun Belt Claim                                                 

Whyte argues that the requirement that he use a visible stun belt at trial violated his 
right to a fair trial, due process, the presumption of innocence, the right to counsel, and the 
right  to  participate  in  his  defense.  (Docket  #  23  at  7–8,  Docket  #  49  at  16–20.)  The 
Respondent asserts that this claim was procedurally defaulted. I agree.   
A federal court may not review a question of federal law decided by a state court if the 
decision of the state court rests on a state procedural ground that is independent of the federal 
question and adequate to support the judgment. Moore v. Bryant, 295 F.3d 771, 774 (7th Cir. 
2002). The independent and adequate state ground doctrine “applies to bar federal habeas 
when a state court declined to address a prisoner’s federal claims because the prisoner had 

failed to meet a state procedural requirement.” Id. (internal quotation and citation omitted). 
To  conclude  that  a  petitioner  has  procedurally  defaulted  a  claim,  the  court  “must  be 
convinced that the last state court to consider the question actually relied on [a procedural 
ground] as the basis for its decision.” Braun v. Powell, 227 F.3d 908, 912 (7th Cir. 2000) 
(internal citations omitted). The state court’s reliance on a procedural rule therefore must be 
explicit. See id. Furthermore, “the state’s procedural rule must be both ‘firmly established and 
regularly followed,’” applied consistently and frequently, and will not be an adequate ground 
for procedural default “if the prisoner ‘could not fairly be deemed to have been apprised of its 
existence’ at the time [he] acted.” Id. (internal citations omitted).     
 If a state court does not reach a federal issue because of a state procedural bar, that 
issue cannot be raised in a writ of habeas corpus to a federal court without a showing of cause 
and prejudice. Jenkins v. Nelson, 157 F.3d 485, 491 (7th Cir. 1998) (citing Wainwright v. Sykes, 
433 U.S. 72, 90–91 (1977)). In some cases, ineffective assistance of counsel may excuse the 

default if the ineffectiveness rises to the level of a constitutional deprivation. Rodriguez v. 
Young,  906  F.2d  1153,  1159  (7th  Cir.  1990).  Additionally,  procedural  default  may  be 
overcome in extraordinary cases where there would otherwise be a deprivation of due process 
resulting in a fundamental miscarriage of justice. Id. (citing Murray v. Carrier, 477 U.S. 478 
(1986)).                                                                  
In this case, contrary to Whyte’s assertion, the Wisconsin Court of Appeals explicitly 
disposed of Whyte’s stun belt claims on procedural grounds, concluding that he had waived 
them under Wis. Stat. § 974.06(4) and State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 
157 (1994). (Docket # 31-12 ¶ 4.) The Seventh Circuit has held that the Escalona-Naranjo rule 

is an independent and adequate state procedural ground that forecloses federal habeas review. 
Perry v. McCaughtry, 308 F.3d 682, 690 (7th Cir. 2002). Thus, Whyte’s stun belt claim is 
foreclosed unless he establishes cause and prejudice for the default, or establishes that failure 
to consider the claim would result in a fundamental miscarriage of justice. Whyte does neither 
but argues that the court of appeals did rule on the merits of the stun belt claims. (Docket # 
49 at 10–11.) It did not. It merely considered whether exceptions to the procedural bar should 
apply, which involved some review of the merits, but did not change the underlying fact that 
the court rejected Whyte’s stun belt claim on the basis of the procedural bar. See Gray v. Hardy, 
598 F.3d 324, 329 (7th Cir. 2010) (citing Miranda v. Leibach, 394 F.3d 984, 992 (7th Cir. 2005); 
Rodriguez v. McAdory, 318 F.3d 733, 735 (7th Cir. 2003); Neal v. Gramley, 99 F.3d 841, 843–44 
(7th Cir. 1996); Lee v. Davis, 328 F.3d 896, 900 (7th Cir. 2003)).        
I conclude that the state court rejected Whyte’s stun belt claim on the basis of an 
independent and adequate state procedural ground, and Whyte has not shown cause for and 

prejudice resulting from the default that would overcome that bar. Therefore, Whyte is not 
entitled to habeas relief on the basis of his stun belt claim.            
2.   Ineffective Assistance of Counsel Claim                         
Whyte asserts that trial counsel was ineffective for failing to object to the stun belt at 
trial and for failing to investigate a potential defense, namely that the amount of force Whyte 
used against Weiland was reasonable under the circumstances.2 (Docket # 23 at 8, Docket # 
49 at 21–31.)  The State argues that this claim is procedurally defaulted. As with the stun belt 
claim, the Wisconsin Court of Appeals disposed of Whyte’s ineffective assistance of counsel 
claims on procedural grounds, concluding that he had waived them under Wis. Stat. § 
974.06(4) and Escalona-Naranjo. (Docket # 31-12 ¶ 4.) However, citing to Page v. Frank, 343 

F.3d 901, 907–09 (7th Cir. 2003), Whyte argues that procedural default should not apply to 
this claim.                                                               
I need not resolve the question of procedural default because even if the claim is not 
defaulted, Whyte is not entitled to habeas relief because his counsel was not ineffective. To 
establish  ineffective  assistance  of  counsel,  Whyte  must  show  both  “that  counsel’s 
performance was deficient” and “that the deficient performance prejudiced the defense.” 
Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy Strickland’s performance prong, 
the defendant must identify “acts or omissions of counsel that could not be the result of 


2 In his petition, Whyte also mentions counsel’s failure to present mitigating evidence at sentencing, 
but he does not argue this claim in either of his briefs, so I deem it abandoned. 
professional judgment.” United States ex rel. Thomas v. O’Leary, 856 F.2d 1011, 1015 (7th Cir. 
1988)  (citing  Strickland,  466  U.S.  at  690).  “The  question  is  whether  an  attorney’s 
representation amounted to incompetence under ‘prevailing professional norms,’ not whether 
it deviated from best practices or most common custom.” Harrington v. Richter, 131 S. Ct. 770, 

788 (2011) (quoting Strickland, 466 U.S. at 689). A reviewing court must seek to “evaluate the 
conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689. We “must indulge 
a  strong  presumption  that  counsel’s  conduct  falls  within  a  wide  range  of  reasonable 
professional assistance,” id., and “strategic choices made after thorough investigation of law 
and facts relevant to plausible options are virtually unchallengeable,” id. at 690.  
To establish prejudice, it is “not enough for the defendant to show that his counsel’s 
errors had some conceivable effect on the outcome of the [trial].” Hough v. Anderson, 272 F.3d 
878, 891 (7th Cir. 2001). A petitioner must show “that there is a reasonable probability that, 
but for counsel’s errors, the result of the [trial] would have been different.” Strickland, 466 

U.S. at 694. This does not mean that the defendant must show that “counsel’s deficient 
conduct  more  likely  than  not  altered  the  outcome  in  the  case.”  Id.  at  693.  Rather,  a 
“reasonable probability is a probability sufficient to undermine confidence in the outcome.” 
Id. at 694. Making this probability determination requires consideration of the totality of the 
evidence before the jury. Id. at 695. A “verdict or conclusion only weakly supported by the 
record is more likely to have been affected by errors than one with overwhelming record 
support.”  Id.  at  696.  Additionally,  under  Seventh  Circuit  precedent,  a  petitioner  may 
demonstrate  that  the  cumulative  effect  of  counsel’s  individual  acts  or  omissions  was 
substantial enough to meet Strickland’s prejudice test. Williams v. Washington, 59 F.3d 673, 682 
(7th Cir. 1995) (citing Montgomery v. Petersen, 846 F.2d 407, 412 (7th Cir. 1988); United States 
ex rel. Kleba v. McGinnis, 796 F.2d 947, 958 (7th Cir. 1986)).            
A court deciding an ineffective assistance claim need not approach the inquiry “in the 
same order or even . . . address both components of the inquiry if the defendant makes an 

insufficient showing on one.” Id. at 697. “If it is easier to dispose of an ineffectiveness claim 
on the ground of lack of sufficient prejudice, which we expect will often be so, that course 
should be followed.” Id.                                                  
Regarding counsel’s failure to object to the requirement that Whyte wear a stun belt at 
trial, Whyte has not shown prejudice under Strickland. Whyte argues that the stun belt affected 
the jury’s perception of him, his ability to perform in-court demonstrations, and his ability to 
testify effectively due to his fear of being shocked. (Docket # 49 at 14–18.) This is plausible, 
but Whyte has not shown that there is a reasonable probability that but for the use of the stun 
belt the verdict would have been different. The jury found Whyte guilty of second-degree 

rather than first-degree intentional homicide, suggesting that the jury thought the amount of 
force Whyte used was unreasonable. Whyte has not shown a reasonable probability that 
absent the stun belt the jury’s assessment of the reasonableness of the force he used would 
have been different. Thus, Whyte is not entitled to habeas relief due to counsel’s failure to 
object to the stun belt.                                                  
As for counsel’s failure to investigate potential evidence that the amount of force 
Whyte used was reasonable under the circumstances, Whyte asserts that further investigation 
would have led counsel to an expert on the use of force and the characteristics of an extremely 
intoxicated alcoholic. (Id. at 21–31.) Whyte points to a lengthy report by a purported such 

expert, Marc MacYoung. (Docket # 31-14 at 137–169.) Whyte asserts that such an expert 
“would [have] explain[ed] that a knife injury has no immediate disabling effect, and that 
contrary to making her easily subdued, Weiland’s history and [blood alcohol concentration] 
would  have  actually  made  her  more  of  a  threat  rendering  Whyte’s  greater  size 
inconsequential.” (Id.)                                                   

Whyte has not shown that failure to locate and call an expert was prejudicial under 
Strickland. The jury heard testimony from multiple witnesses that some individuals, and 
Weiland  specifically,  could  be  physically  threatening  when  extremely  intoxicated.  A 
toxicologist testified that some individuals become antagonistic, hostile, and violent when 
intoxicated. (Trial Day 5 Tr. 153, Docket # 31-29.) A deputy testified that he had encountered 
people with blood alcohol concentrations exceeding .30 who are capable of attacking. (Trial 
Day 2 Tr. 77–81, Docket # 31-26.) One acquaintance testified that Weiland was not only 
functional but violent when intoxicated. (Trial Day 3 Tr. 58–60, 114, 120, Docket # 31-27.) 
A neighbor testified that Weiland could be aggressive, active, and capable when drunk, and 
that Weiland had once given Whyte a split lip. (Id. at 155–56, 158, 161–62.) According to 

another neighbor, Weiland became mean around Whyte when drunk, and Weiland had once 
attacked a neighbor’s fiancé when Weiland was “really, really drunk.” (Trial Day 4 Tr. 28–
30, Docket # 31-28.) In sum, there was specific testimony that Weiland became physically 
belligerent when very drunk. The jury apparently believed this testimony, finding that Whyte 
had acted in self-defense in finding him guilty of second-degree rather than first-degree 
intentional homicide. Thus, Whyte has not shown a reasonable probability that expert 
testimony explaining that some individuals become aggressive and threatening when drunk 
would have altered the verdict.                                           
Whyte’s argument that an expert opinion was necessary to understand the realities of 
violence and life-or-death struggles would apply to virtually every case where reasonable use 
of force is an issue, but experts are not categorically required in such cases. The jury did not 
need an expert to explain that one who is being stabbed by an attacker, as the jury apparently 

believed Whyte was, is subject to physical and mental stress that affects how he responds. As 
for expert testimony that knife wounds are not immediately disabling, such that Weiland 
could have continued to struggle even after she had been stabbed, such testimony would have 
been at least partially redundant. The toxicologist who performed Weiland’s autopsy testified 
that he could not say whether any one of Weiland’s knife wounds would have immobilized 
her immediately. (Trial Day 5 Tr. 145, Docket # 31-29.)                   
In sum, Whyte has not shown a reasonable probability that expert testimony would 
have changed the result of the trial. Accordingly, any deficiency on the part of trial counsel in 
failing to object to the stun belt or seek an expert opinion was not prejudicial under Strickland. 
Thus, Whyte is not entitled to habeas relief on this claim.               

3.   Ineffective Assistance of Post-Conviction/Appellate Counsel     
Whyte’s petition asserts ineffective assistance of post-conviction/appellate counsel for 
failing to argue six issues. (Docket # 23 at 9.) In the scheduling order of May 21, 2018, I found 
that Whyte had not exhausted two of the issues, but allowed Whyte to proceed on the other 
four: failure to argue (1) the stun belt and ineffective assistance of counsel issues, (2) the 
involuntariness of Whyte’s statements, (3) the improper admission of other-acts evidence, and 
(4) that the other-acts and Giles evidence compelled Whyte to take the stand. (Docket # 41.)  
The proper standard for evaluating whether appellate counsel was ineffective on 
habeas review is the familiar two-pronged analysis of deficient performance and prejudice 
enunciated in Strickland. Smith v. Robbins, 528 U.S. 259, 285 (2000). Counsel’s performance is 
deficient when it falls “below an objective standard of reasonableness.” Strickland, 466 U.S. 
at 687–88. When the petitioner is challenging the selection of issues presented on appeal, 
“appellate counsel’s performance is deficient under Strickland only if she fails to argue an 

issue that is both ‘obvious’ and ‘clearly stronger’ than the issues actually raised.” Makiel v. 
Butler, 782 F.3d 882, 897 (7th Cir. 2015) (internal citation omitted). This is because appellate 
counsel  is  not  required  to  raise  every  non-frivolous  issue  on  appeal.  Id.  A  petitioner 
demonstrates the requisite prejudice “only when appellate counsel fails to raise an issue that 
‘may have resulted in a reversal of the conviction, or an order for a new trial.’” Winters v. 
Miller, 274 F.3d 1161, 1167 (7th Cir. 2001) (internal citation omitted). In other words, “there 
must be a reasonable probability that the issue not raised would have altered the outcome of 
the appeal had it been raised.” Lee v. Davis, 328 F.3d 896, 901 (7th Cir. 2003). 
Whyte argues at the outset that the issue appellate counsel did raise—violation of the 

Confrontation Clause by the admission of statements by Weiland under the doctrine of 
forfeiture by wrongdoing—was so frivolous as to invoke the rule articulated in Shaw v. Wilson: 
when counsel raises one entirely frivolous argument and rejects another obvious, genuinely 
arguable claim, that is sufficient to show deficient performance. 721 F.3d 908, 915–16 (7th 
Cir. 2013). (Docket # 49 at 31.) Whyte argues that appellate counsel’s Confrontation Clause 
argument had been invalidated a year earlier by the U.S. Supreme Court case of Giles v. 
California, 554 U.S. 353 (2008). Whyte is mistaken. Giles did not invalidate his Confrontation 
Clause argument; it strengthened it. Giles narrowed the scope of forfeiture by wrongdoing to 
cases in which the defendant has caused the declarant’s unavailability for the purpose of 

preventing their testimony. Whyte clearly did not cause Weiland’s unavailability in order to 
prevent her from testifying, but in self-defense, so his argument that forfeiture by wrongdoing 
should not apply was actually stronger after Giles. Therefore, I decline to assess Whyte’s 
ineffective assistance of appellate counsel claims under the rubric of Shaw, and look instead 
to the familiar Robbins standard and ask whether the arguments counsel allegedly should have 

made were clearly stronger than those counsel actually made.              
     3.1  Procedural Default                                         

The Respondent asserts that several of Whyte’s ineffective assistance of appellate 
counsel claims are procedurally defaulted because the court of appeals decided them on state 
procedural grounds in Whyte’s post-conviction motion. (Answer ¶ 16 n.2, Docket # 31; 
Docket # 52 at 19–21.)                                                    
The court of appeals held that Whyte had failed to establish prejudice from any 
instance of alleged ineffective assistance of appellate counsel because Whyte’s post-conviction 
motion made only a conclusory allegation of prejudice. (Docket # 31-12 ¶¶ 9–10.) The court 
noted that under State v. Allen, 2004 WI 106, ¶¶ 84–87, 274 Wis. 2d 568, 682 N.W.2d 433, 
“[m]otions containing only conclusory and legally insufficient allegations that postconviction 
counsel was ineffective are insufficient to circumvent Escalona-Naranjo’s procedural bar.” 
(Docket # 31-12 ¶ 9.) Under Wisconsin law, in a motion seeking post-conviction relief based 
on a claim of ineffective assistance of counsel, the defendant must tell the court “who would 
be called as a witness at an evidentiary hearing and what their testimony was likely to prove.” 
State v. Balliette, 2011 WI 79, ¶ 3, 336 Wis.2d 358, 805 N.W.2d 334. Where a defendant fails 
to do so, the trial court may summarily deny the motion without an evidentiary hearing. State 
v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50 (1996). Here, Whyte stated only that “[a]t a 

hearing, the defendant will establish that post-conviction counsel’s deficient performance 
prejudiced  him.”  (Docket  #  31-12  ¶  9.)  The  court  of  appeals  concluded  that  this  was 
insufficient to show prejudice in order to circumvent Escalona’s procedural bar (id.), and that 
it also justified dismissal of the post-conviction motion (id. ¶ 10).     
Thus, the claims of ineffective assistance of appellate counsel Whyte raised in his post-

conviction motion are barred by independent and adequate state procedural grounds. As 
relevant here, the barred claims include Whyte’s ineffective assistance of appellate counsel 
claims regarding ineffectiveness of trial counsel, the stun belt, and the voluntariness of 
Whyte’s statements. (Docket 31-12 ¶ 6.) Whyte has not shown cause for and prejudice 
stemming from the default, and therefore he is not entitled to habeas relief on this claim.  
Even if these claims were not procedurally defaulted, Whyte would not be entitled to 
relief on them. As explained above, his stun belt and ineffective assistance of counsel claims 
were losing arguments, and appellate counsel cannot be ineffective for failing to raise losing 
arguments. See Perez v. United States, 286 F. App’x 328, 331 (7th Cir. 2008) (“Failure to raise 

a losing argument or pursue a losing motion . . . does not constitute ineffective assistance.”) 
(citing Whitehead v. Cowan, 263 F.3d 708, 731 (7th Cir. 2001); United States v. Jackson, 103 F.3d 
561,  575  (7th  Cir.  1996));  see also  Carter v. Douma,  796  F.3d  726,  735  (7th  Cir.  2015) 
(performance not deficient for failing to make a futile objection); Martin v. Evans, 384 F.3d 
848,  852  (7th  Cir.  2004)  (where  underlying  claim  is  meritless,  there  is  not  reasonable 
probability of a different outcome absent the failure to raise it). Furthermore, although Whyte 
raises the voluntariness issue in his petition (Docket # 23 at 9), he does not argue it in his 
brief. Therefore, even were this claim not procedurally defaulted, I would conclude that 
Whyte had abandoned it.                                                   
     3.2  Other-Acts and Hearsay Evidence                            
Whyte contends that appellate counsel was ineffective for failing to argue the improper 
admission of other-acts/hearsay evidence, including testimony that Weiland reported that 
Whyte treated her abusively and that Whyte had indicated he wanted to end the relationship. 

(Docket # 23 at 9, Docket # 49 at 37–38.) Whyte argued these grounds in his state habeas 
petition3 (Docket # 31-17), and the court of appeals rejected them (Docket # 31-21). The court 
of appeals explained that Whyte had challenged the other-acts evidence in his initial appeal 
under the rubric of his right to confront witnesses, and that they had been rejected on the basis 
of harmless error because of the overwhelming evidence of Whyte’s guilt. (Id.) The court 
reasoned that challenging those statements on other grounds would not affect the harmless 
error analysis. (Id.) Additionally, the court explained that the challenged testimony relates to 
the question of whether Whyte committed first-degree intentional homicide, but not to the 
crime Whyte was actually convicted of: second-degree intentional homicide, for using excessive 

force in self-defense. (Id.)                                              
The court of appeals’ conclusion is not contrary to or an unreasonable application of 
Strickland or Robbins. Even if appellate counsel had challenged the statements as the improper 
admission of other-acts evidence rather than under the Confrontation Clause, the prejudice 
analysis would have been the same. None of the statements Whyte challenged affected the 
analysis of whether the amount of force Whyte used was reasonable, especially in light of the 
evidence about the size disparity between Whyte and Weiland, Weiland’s intoxication, and 


3 Whyte’s state habeas petition also argued the involuntariness of Whyte’s statements to police. 
(Docket # 31-17 at 25–37.) The court of appeals noted, as I did above, that this argument was rejected 
on procedural grounds in Whyte’s post-conviction motion. (Docket # 31-21 at 2–3.) The court of 
appeals further noted that the circuit court had made detailed findings establishing that Whyte’s 
statements were, in fact, voluntary.                                      
the number of potentially fatal stab wounds Weiland suffered. (Docket # 31-5 ¶ 13.) In light 
of that evidence, the court concluded that it was “wholly inconceivable that a jury could find 
that any subjective belief Whyte had regarding the amount of force used was reasonable,” and 
that because “the challenged statements were inconsequential to the evidence of Whyte’s 

guilt, any error in their admission does not undermine our confidence in the conviction.” (Id.) 
Because Whyte has failed to show that this conclusion was unreasonable, he is not entitled to 
habeas relief on this claim.                                              
Regarding Whyte’s argument that appellate counsel should have cited Giles for the 
proposition that the doctrine of forfeiture by wrongdoing would not apply in this case, the 
court of appeals held that the same harmless error ruling would apply to any such argument. 
Weiland’s out-of-court statements would only have been relevant to first-degree intentional 
homicide; they were largely or entirely irrelevant to the crime the jury actually convicted 
Whyte of, using an unreasonable amount of force in self-defense. In other words, the Giles 

argument was a losing one, and therefore not clearly stronger than the Confrontation Clause 
argument appellate counsel actually made. For these reasons, Whyte is not entitled to habeas 
relief on this claim.                                                     
                     CONCLUSION                                      
The Wisconsin Court of Appeals rejected Whyte’s claims of constitutional error, and 
Whyte has failed to show that the court unreasonably applied Supreme Court precedent to 
the facts of his case or unreasonably determined the facts in light of the evidence presented. 
Thus, Whyte’s petition for a writ of habeas corpus is denied.             
             CERTIFICATE OF APPEALABILITY                            
According to Rule 11(a) of the Rules Governing § 2254 Cases, the court must issue or 
deny a certificate of appealability “when it enters a final order adverse to the applicant.” A 
certificate of appealability may issue “only if the applicant has made a substantial showing of 

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing 
of the denial of a constitutional right, the petitioner must demonstrate that “reasonable jurists 
could debate whether (or, for that matter, agree that) the petition should have been resolved 
in a different manner or that the issues presented were ‘adequate to deserve encouragement 
to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 
463 U.S. 880, 893, and n.4).                                              
When issues are resolved on procedural grounds, a certificate of appealability “should 
issue when the prisoner shows, at least, that jurists of reason would find it debatable whether 
the petition states a valid claim of the denial of a constitutional right and that jurists of reason 

would find it debatable whether the district court was correct in its procedural ruling.” Id. 
Each showing is a threshold inquiry; thus, the court need only address one component if that 
particular showing will resolve the issue. Id. at 485.                    
Jurists of reason would not find it debatable that Whyte is not entitled to habeas relief. 
Thus, I will deny Whyte a certificate of appealability. Of course, Whyte retains the right to 
seek a certificate of appealability from the Court of Appeals pursuant to Rule 22(b) of the 
Federal Rules of Appellate Procedure.                                     
                        ORDER                                        
NOW, THEREFORE, IT IS ORDERED that Whyte’s amended petition for a writ 
of habeas corpus (Docket # 23) is DENIED;                                 
IT IS FURTHER ORDERED that a certificate of appealability shall not issue.  

IT IS FURTHER ORDERED that this action be and hereby is DISMISSED;   
IT IS FURTHER ORDERED that the Clerk of Court enter judgment accordingly. 

Dated at Milwaukee, Wisconsin this 28th day of July, 2020.           

                              BY THE COURT:                          

                              s/Nancy Joseph____________                           
                              NANCY JOSEPH                           
                              United States Magistrate Judge