Jimmy Powell v. Larry Fuchs


In the United States Court of Appeals For the Seventh Circuit ____________________ No. 19‐1818 JIMMY L. POWELL, Petitioner‐Appellant, v. LARRY FUCHS, Respondent‐Appellee. ____________________ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:15‐cv‐00640‐NJ — Nancy Joseph, Magistrate Judge. ____________________ ARGUED DECEMBER 9, 2020 — DECIDED JULY 15, 2021 ____________________ Before WOOD, BRENNAN, and ST. EVE, Circuit Judges. BRENNAN, Circuit Judge. Jimmy Powell dealt cocaine. After a drug deal went bad and his customer ended up with life‐ threatening injuries, he was charged in Wisconsin state court with various crimes, including first‐degree reckless injury. A jury found Powell guilty of that crime but acquitted him of two more serious charges. He appealed, contending that a supplemental jury instruction about the reckless injury charge misstated the law and that his counsel was ineffective for 2 No. 19‐1818 agreeing to it. The state appellate court rejected his argu‐ ments, as did the district court when Powell raised them in a petition for a writ of habeas corpus under 28 U.S.C. § 2254. In this appeal, Powell maintains his claim that his trial counsel was ineffective for approving the supplemental jury instruction, and he argues that the state appellate court un‐ reasonably applied federal law in concluding otherwise. But he offers no clear and convincing evidence to rebut the state appellate court’s conclusion that the instruction was an accu‐ rate response to a question from the jury. The record also shows that Powell’s trial counsel had reasonable and strategic reasons for not objecting, so we affirm. I. Background A. The Offense Late one evening in 2009, Robert Rabe contacted Jimmy Powell, his regular dealer, to purchase cocaine. Rabe and his friend, Ryan Ryckman, had been drinking earlier that day and wanted drugs. Powell agreed to meet them and drove to a dimly lit parking lot near Madison, Wisconsin. Rabe and Ryckman arrived in a separate vehicle. Rabe parked his car and got out. Carrying about $900 in cash, Rabe approached Powell’s truck and entered on the passenger side. Ryckman waited in Rabe’s car. What happened next is the subject of conflicting evidence, but it is clear that Powell and Rabe got into a fight and they spilled out of Powell’s truck. Eventually, Powell jumped back in his truck and with its headlights off sped away, in the pro‐ cess running over Rabe. Ryckman, meanwhile, worried that the deal was taking too long and left Rabe’s car to investigate. When Ryckman saw Rabe get run over, he dialed 911 for help. No. 19‐1818 3 While Ryckman was on the phone, Powell returned to the scene. His truck’s headlights were still off. The evidence again conflicts as to what happened next, but at some point Ryck‐ man and Powell struggled over the phone, and the phone wound up sheared in half. Powell got back in his truck and sped away a second time. When police arrived at the scene, they found a knife on the ground. Rabe had several serious injuries …

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