                             In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-3272

L AWRENCE N ORTHERN ,
                                             Petitioner-Appellant,
                                v.

A NA B OATWRIGHT,
Warden, New Lisbon
Correctional Institution,
                                             Respondent-Appellee.


            Appeal from the United States District Court
                for the Western District of Wisconsin.
         No. 3:08-cv-184-bbc—Barbara B. Crabb, Chief Judge.



    A RGUED N OVEMBER 10, 2009—D ECIDED JANUARY 29, 2010




  Before P OSNER and F LAUM, Circuit Judges, and D ER-
Y EGHIAYAN, District Judge.
  F LAUM, Circuit Judge. Lawrence Northern was con-
victed in Wisconsin state court of possessing more than



  Hon. Samuel Der-Yeghiayan, District Judge for the Northern
District of Illinois, sitting by designation.
2                                               No. 08-3272

100 grams of cocaine with the intent to distribute it.
After his direct appeal and a number of postconviction
actions in Wisconsin courts, Northern petitioned the
Western District of Wisconsin for a writ of habeas cor-
pus. Northern claims his trial counsel was inef-
fective because he did not challenge an allegedly
deficient jury instruction and did not object to an
amended information filed by the prosecution on the
day of trial. He also claims his appellate counsel was
ineffective for not raising the first issue on direct appeal.
The district court held that the state court reasonably
applied Strickland v. Washington, 466 U.S. 668 (1984), when
it denied Northern’s claims on the merits, and thus dis-
missed Northern’s petition. We affirm.


                      I. Background
  On September 14, 2001, Northern and four co-defendants
were charged in Wisconsin state court with possessing
with the intent to deliver more than 100 grams of cocaine.
There were six counts: one for each month between
January and June of 2001. Northern was also charged
individually with one count of possessing with the intent
to deliver more than 15 but not more than 40 grams of
cocaine, on September 20, 2001.
  At a hearing on January 8, 2002, the afternoon before
trial, Northern learned that one of his co-defendants,
Hollie Peterson, had pleaded guilty and would be testi-
fying for the state. The trial court offered an adjournment
to allow the defendants time to prepare. Instead, all
defendants agreed to proceed with the trial. The prosecutor
No. 08-3272                                                   3

then requested and received permission to file an
amended information 1 to eliminate the charges against
Peterson.
  The next morning the prosecutor filed the amended
information. It not only dismissed Peterson’s charges
but consolidated the six counts of the previous informa-
tion into one count: possessing with intent to distribute
more than 100 grams of cocaine between January and
September of 2001 (the additional count, charging North-
ern alone with possessing 15 to 40 grams of cocaine on
September 20, 2001, remained). Northern did not have
advance warning that the amended information would
alter the charges against him. Neither his attorney nor
any of his co-defendants’ attorneys objected, and the
case proceeded to trial that day.
   At trial, two witnesses testified against Northern. The
first, Sheri Mitchell, testified that in January of 2001,
Northern delivered at least one-quarter kilogram of
cocaine to her home so that she could process and sell it.
Mitchell also testified that between January and July of
2001, Northern delivered at least one-quarter kilogram
of cocaine to her home on five to ten different occasions.
The second witness, Hollie Peterson, testified that on one



1
  The document in question was actually to be the second
amended information, as the first information had been
amended once previously. Because the first amendment has
no bearing on this case, we will refer to the information filed
the morning of the trial as the “amended information” and
the information that proceeded it as the “original information.”
4                                               No. 08-3272

occasion Northern delivered 125 grams of cocaine to her
for processing and sale. She did not know the exact date
but stated that she still had most of it when she was
arrested in September of 2001.
  At the close of trial on January 11, 2002, the trial court
instructed the jury that, should it find any of the defen-
dants guilty, it would have to answer questions on the
verdict form as to the amount of cocaine involved. The
judge also instructed the jury that it would have to be
“satisfied beyond a reasonable doubt as to the amount of
cocaine for each count.” During deliberations, the jury
asked the following question:
    On count one regarding one of the defendants we all
    agree that he is guilty of possession with intent to
    deliver cocaine as a party to a crime during January-
    September 2001. However, there is one juror who
    does not believe without reasonable doubt that there
    was more than one hundred grams. Do we have
    to have an unanimous vote on that as well or do
    we just answer that as no?
  After discussing the matter with the defendants’ attor-
neys, the prosecutor told the judge that defense counsel
had advised him that they would rather have the jury
write down the amount on which it could unanimously
agree instead of having the court instruct the jury on a
specific lesser included amount. The circuit court then
told the jury the following:
    Your verdict must be unanimous and if you are
    unable to unanimously agree as to one of the defen-
    dants that the evidence established beyond a reason-
No. 08-3272                                             5

   able doubt that he possessed with intent to deliver
   more than one hundred grams, then I would ask you
   to fill in whatever amount you can unanimously
   agree the evidence established beyond a reasonable
   doubt was possessed with intent to deliver.
  After further deliberation, the jury found that all co-
defendants, including Northern, were guilty of possession
with intent to distribute more than one hundred grams
of cocaine. The jury also found Northern guilty of posses-
sion with intent to distribute 15 to 40 grams of cocaine.
On July 17, 2002, the district court sentenced Northern to
30 years in prison and 10 years extended supervision
on the first offense and 20 years in prison and 10 years
of extended supervision on the second offense, to run
concurrently.
  Northern appealed his conviction, arguing that the
state violated his due process rights by violating its
discovery obligations to him. On November 4, 2003, the
Wisconsin Court of Appeals affirmed his conviction,
finding that he had failed to preserve this issue for ap-
pellate review. The Wisconsin Supreme Court denied
his petition for review on March 23, 2004.
  In March 2005, Northern filed a motion for a new trial
under Wis. Stat. § 974.06. Among other things, he argued
for the first time that his trial counsel was ineffective
because he failed to challenge the defective jury instruc-
tion. The circuit court denied Northern’s motion without
a hearing and without stating reasons. On appeal,
the Wisconsin court of appeals held that Wis. Stat.
§ 974.06(4) barred Northern from raising his ineffective
6                                                   No. 08-3272

assistance of counsel claim for the first time in a
collateral proceeding. The court of appeals also rejected
Northern’s alternative argument that his postconviction
counsel was ineffective for failing to raise ineffective
assistance of trial counsel as an issue on direct appeal. The
court of appeals noted that Northern, his trial attorney,
his co-defendants, and his co-defendants’ attorneys had
all approved the jury instruction after a lengthy
discussion on the record. It then reasoned that “[a] defen-
dant who fails to object to errors in a proposed jury
instruction waives his right to raise the issue on appeal.
Postconviction counsel was, therefore, not ineffective
for failing to raise this claim.”
   On August 18, 2006, Northern filed a pro se petition
for a writ of habeas corpus directly with the Wisconsin
court of appeals, pursuant to State v. Knight, 484 N.W.2d
540 (Wis. 1992) (holding that a habeas corpus petition
filed in the court of appeals is the proper vehicle for
raising claims of ineffective assistance of appellate coun-
sel).2 Among other claims, Northern argued that his
appellate counsel was ineffective for failing to allege


2
   There is an exception to State v. Knight. When a defendant
claims his appellate counsel was ineffective for failing to raise
an ineffective assistance of trial counsel claim, the proper
procedure is to raise the claim in the circuit court either by a
habeas petition or a § 974.06 motion. See State ex rel. Rothering
v. McCaughtry, 556 N.W. 2d 136 (Wis. Ct. App. 1996); see also
State ex rel. Panama v. Hepp, 758 N.W.2d 806, 808-09 (Wis. Ct.
App. 2008) (discussing relationship between Knight and
Rothering).
No. 08-3272                                                 7

ineffective assistance of trial counsel based on trial coun-
sel’s failure to object to the amended information. The
court of appeals denied Northern’s petition on March 15,
2007, noting that he had failed to serve the petition on
the state and that his claims were unlikely to succeed on
the merits. In its written opinion, the court of appeals
did not specifically mention Northern’s argument based
on the amended information.
  On September 8, 2006, Northern filed his second § 974.06
motion. In this motion, he alleged that his trial counsel
was ineffective for failing to object to the state’s last-
minute amendment of the information. The circuit
court denied the motion without a hearing and without
stating its reasons for doing so. Northern appealed. On
November 29, 2007, the court of appeals affirmed, denying
his claim on the merits. The court of appeals first
noted that Northern had sufficiently explained his
failure to raise this claim on direct appeal or in his earlier
postconviction proceedings. The court then went on to
reject Northern’s argument that the trial court would
have compelled the state to prosecute the multiple-
count information as a sanction for not divulging its
intent to broaden the timeframe it alleged. The
appellate court also rejected Northern’s argument that the
multiple-count information would have resulted in his
acquittal on each of the six unconsolidated charges.
Concluding that because Mitchell’s testimony supported
Northern’s conviction on at least one count—and possibly
more—of the original information, he would have
been no better off under the original information and
dismissed his ineffective assistance of counsel claim for
8                                              No. 08-3272

lack of prejudice. The Wisconsin Supreme Court denied
his petition for review on January 22, 2008.
  Northern filed a petition for a writ of habeas corpus in
the Western District of Wisconsin on April 2, 2008. North-
ern raised both his jury instruction and amended infor-
mation claims, alleging that his trial attorney’s conduct
in each of these instances amounted to ineffective assis-
tance of counsel. Northern’s petition was referred to
Magistrate Judge Stephen Crocker, who, on July 28, 2008,
issued a report and recommendation that Northern’s
petition be denied. The district court issued an order
and judgment on August 18, 2008, adopting the magis-
trate’s recommendation and denying Northern’s petition.
On August 27, 2008, Northern filed a notice of appeal,
and on February 18, 2009, we granted Northern’s
request for a certificate of appealability.


                     II. Discussion
  This habeas action is governed by the Antiterrorism
and Effective Death Penalty Act (“AEDPA”). Because
Northern is seeking federal habeas relief from a state
court conviction reviewed on the merits by a state court,
our task is to determine whether the state court’s
decision was contrary to clearly established Supreme
Court precedent, involved an unreasonable application
of such precedent, or was based on an unreasonable
determination of the facts in light of the evidence pre-
sented in state court. Conner v. McBride, 375 F.3d 643, 649
(7th Cir. 2004); 28 U.S.C. § 2254(d). We review the
district court’s legal conclusions—it made no findings of
No. 08-3272                                                  9

fact—de novo. Rittenhouse v. Battles, 263 F.3d 689, 695 (7th
Cir. 2001).
  Northern first argues that the performance of his trial
counsel was constitutionally deficient because trial
counsel did not object to an allegedly deficient jury in-
struction. In Wisconsin, however, claims for postconvic-
tion relief must be raised at the first opportunity unless
the court finds there was a sufficient reason for failing to
raise the claim earlier. See State v. Escalona-Naranjo, 517
N.W.2d 157 (Wis. 1994). Wisconsin allows ineffective
assistance of counsel claims to be brought on direct
appeal, and provides for an evidentiary hearing to
develop the necessary factual record. See State v. Machner,
285 N.W.2d 905 (Wis. Ct. App. 1979).3 Northern did not do
so. To excuse his default, Northern argues that his appel-
late counsel was ineffective for failing to raise an ineffec-
tive assistance claim against his trial counsel on direct
appeal.
  Northern does not argue that his trial counsel should
have challenged the instructions the jury received before



3
  Wisconsin has declined to adopt the approach taken by the
Supreme Court in Massaro v. United States, 538 U.S. 500 (2003),
and continues to require defendants to raise ineffective assis-
tance of counsel on direct appeal if possible. See State v. Lo,
665 N.W.2d 756, 777 n.12 (Wis. 2003) (Abrahamson, C.J.,
dissenting) (criticizing majority for reaffirming Escalona
rather than adopting Massaro approach); see also Hayes v.
Battaglia, 403 F.3d 935, 937 (7th Cir. 2005) (Massaro applies
only to federal criminal cases).
10                                             No. 08-3272

deliberation, which directed the jurors to determine
beyond a reasonable doubt whether or not Northern and
each of his three co-defendants possessed, with intent to
distribute, more than 100 grams of cocaine. This instruc-
tion accurately reflected Wisconsin law, as the quantity
finding is used to determine the range of possible penal-
ties, see Wis. Stat. § 961.41(1m)(cm), and thus must be
found beyond a reasonable doubt. See Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000). The jurors who were
initially unable to agree that each defendant possessed
more than 100 grams, asked what they should do if they
were unable to agree. It is the response to this question
that Northern challenges. After discussing the matter
with counsel, the trial judge ordered the jury to write in
the amount to which it could unanimously agree. In
the end, the jury concluded that every defendant had
possessed more than 100 grams of cocaine.
  Although he concurred in his counsel’s decision at
the time, Northern now believes his trial counsel
should have insisted that the jury receive an instruction
asking if it could agree unanimously that the defendant
in question possessed more than 40 grams but not more
than 100 grams of cocaine (the next lower quantity relevant
for sentencing). Northern relies, in particular, on the
comments to the pattern jury instruction. See Wis JI-
Criminal 6001. Comment 1 to the instructions states that
it is “preferable to state the question in terms of
whether the required amount is present rather than to
ask the jury to agree on a specific amount. Requiring
such agreement might cause a delay in reaching a verdict
that is not related to any essential issue.” Comment 2
states that “[i]t may be appropriate to submit more
No. 08-3272                                            11

than one question if there is a reasonable basis for
finding that a larger amount was not established and that
a smaller amount was established (as in a lesser
included offense situation).”
  The Wisconsin court of appeals, considering the denial
of Northern’s first motion for postconviction relief,
appears to have reached the merits of Northern’s claim by
concluding that his counsel’s performance was adequate,
although the actual holding of the decision is a bit
unclear because the court also stated that Northern had
waived the issue by not objecting at trial. Since the crux
of Northern’s claim is that his trial counsel was inef-
fective for failing to object, it does not seem to us that
Northern’s claim can be disposed of on this procedural
ground. Thus, we review the state court’s decision for
unreasonable application of Strickland, the relevant Su-
preme Court precedent. Under Strickland, a defendant
must show both that his attorney performed below mini-
mal professional standards and that the substandard
performance prejudiced him. McAfee v. Thurmer, 589
F.3d 353, 356 (7th Cir. 2009).
  The problems with Northern’s argument are myriad. The
mere fact that the pattern jury instructions differ from
those actually given cannot show that his trial counsel’s
performance was deficient, or even that the instructions
were erroneous. Wisconsin courts have “great leeway
in forming instructions.” State v. Wolter, 270 N.W.2d 230,
239 (Wis. Ct. App. 1978). As long as the overall meaning
of the instruction was a correct statement of the law, no
grounds for reversal exist. State v. Fonte, 698 N.W.2d
594, 600 (Wis. 2005). Northern does not appear to argue
12                                              No. 08-3272

that the instruction actually given misstates the law. It
seems quite unlikely that it does—the statute simply
requires the finder of fact to determine how much
cocaine was possessed by the defendants, setting certain
threshold amounts that alter the range of permissible
sentences. See Wis. Stat. § 961.41(1m)(cm). Obviously, an
attorney is not constitutionality deficient for failing to
lodge a meritless objection. Morever, it appears likely
that Northern and his attorney, along with his co-defen-
dants and their attorneys, made a strategic choice to
ask that the jury to agree on a specific amount rather
than asking about the next lowest statutory amount.
Perhaps they thought that the jury would not be able to
unanimously agree on any amount. Indeed, the pattern
instruction appears designed to avoid the danger of
wasted time or deadlock rather than to provide any
particular advantage or protection to defendants. Thus,
the instruction here may have actually been more
favorable to Northern than the pattern instruction. In any
event, Strickland directs reviewing courts not to second-
guess a strategic choice made by an attorney at trial, as
this choice clearly was. 466 U.S. at 689-90; Smith v. Gaetz,
565 F.3d 346, 354 (7th Cir. 2009).
  Nor can Northern establish that he was prejudiced in
any way by his counsel’s alleged mistake. The jury made
clear that its question applied to only one defendant and
there is no indication that defendant was Northern.
Additionally, after further deliberation, the jury ulti-
mately answered the original question—which took the
pattern instruction approach—by finding that all defen-
dants possessed more than 100 grams of cocaine. Had
his counsel’s hypothetical objection been sustained, there
No. 08-3272                                             13

is no evidence that the jury would have found the lesser
40 grams rather than the 100 grams it actually agreed
on. Had the objection been overruled, it seems quite
unlikely that Northern would have secured a new trial on
appeal, as the instruction appears to be a correct state-
ment of the law. An ineffective assistance claim against
Northern’s trial counsel based on the jury instructions
would have been a very weak claim, and his appellate
counsel’s decision not to bring it was entirely reasonable.
   Northern’s other theory is that his trial counsel was
ineffective for not objecting to the amended information
filed by the prosecutor on the first day of trial. Northern
did not raise this claim on direct appeal or in his initial
postconviction proceedings, but the state court of
appeals found that he had a sufficient reason for not
doing so and reached the merits of his ineffective assis-
tance claim. We therefore review the state court’s decision
to see if it unreasonably applied Strickland, the relevant
precedent.
  The state court concluded that Northern could not
establish prejudice because nothing in the record
indicated that the trial court would have forced the state
to proceed on the original information, rather than the
amended one tendered on the day of trial. The state court
also found Northern’s claim that he would have been
acquitted on each of the charges in the original, multiple-
count indictment, entirely speculative. We agree.
  First, it appears unlikely that the trial judge would
have forced the government to proceed with the initial
information, rather than the one filed on the morning
of trial. Indeed, the previous day, when the prosecution
14                                             No. 08-3272

indicated that Hollie Peterson would be cooperating
with the government, the judge rejected defendants’
suggestion that the case proceed to trial with Peterson’s
testimony excluded. Instead, he offered a two-month
adjournment to give the defense time to prepare (an
offer the defense rejected). Northern argues that the
judge would have treated the amended information dif-
ferently because he would have been troubled by the
prosecution’s conduct, but there is no evidence to
support that claim. Indeed, the only basis for Northern’s
claim that the prosecution misled the defendants and
the court is the bare fact that the amended information
differed from the original information beyond simply
dropping the charges against Peterson. Given that less than
twenty-four hours elapsed between the time when the
prosecution informed the court that it was amending
the information and when it produced the amended
information—most of those outside of regular business
hours—this fact hardly indicates an intent to mislead the
court. Moreover, the expanded timeframe appears to
have been used solely to accommodate the testimony of
Peterson. Defendants had already declined an oppor-
tunity to take additional time to prepare for that testi-
mony. Thus, Northern’s argument that the court would
have held the prosecution to the original information
is not only entirely speculative, but implausible.
  In addition, even if the prosecution had been held to
the earlier information, there is no indication that the
outcome of the proceeding would have been different.
Northern argues that without the amended information
Peterson’s testimony would have been excluded. How-
ever, even without Peterson’s testimony, there was
No. 08-3272                                              15

plenty of evidence in the record to convict Northern. The
government’s other witness, Sheri Mitchell, testified that
Northern delivered one-quarter kilogram of cocaine to
her home in January of 2001. She also testified that
between January and July of 2001, Northern again de-
livered one-quarter kilogram of cocaine on five to ten dif-
ferent occasions. As the original information covered
the period from January to July of 2001, this testimony
would have been no less relevant if the govern-
ment was proceeding under the original information.
Peterson’s testimony, by contrast, involved only one
delivery, at an unknown date but late enough in 2001
that she still had most of it when she was arrested. Thus,
even if Northern could establish that the trial judge
would have held the government to the original informa-
tion—and he cannot—he still cannot show that there is a
reasonable probability that the outcome of his trial would
have been different. The state court thus reasonably
applied Strickland when it denied Northern’s ineffective
assistance of counsel claim against trial counsel based
on the amended information.


                     III. Conclusion
  For the foregoing reasons, we A FFIRM the district court’s
denial of Northern’s petition for a writ of habeas corpus.




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