Ademus Akadeameuer Saechao v. CHERYL EPLETT, Warden, Oakhill Correctional Institution

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1356
ADEMUS AKADEAMEUER SAECHAO,
Petitioner-Appellant,
v.
CHERYL EPLETT, Warden, Oakhill Correctional Institution,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 17-cv-370-slc — Stephen L. Crocker, Magistrate Judge.
____________________
ARGUED N OVEMBER 4, 2020 — DECIDED MARCH 16, 2021
____________________
Before EASTERBROOK, RIPPLE, and ROVNER, Circuit Judges.
E ASTERBROOK, Circuit Judge. Charged in Wisconsin state
court with armed robbery, false imprisonment, and related
offenses, Ademus Saechao retained a[orney Jay Kronen-
we[er to represent him. The state charged Manuel Alonso-
Bermudez, Joseph Rohmeyer, and Harley Schul^ with par-
ticipating in the same crimes, though their cases proceeded
separately from Saechao’s. Because the dockets were sepa-
rate, the state’s public defender organization did not know

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2 No. 20-1356
that Kronenwe[er was representing Saechao when it ap-
pointed him to represent Alonso-Bermudez too. This created
problems that have led to this petition for collateral relief
under 28 U.S.C. §2254.
Everyone quickly saw that there was a potential for con-
flict of interest, if only because Alonso-Bermudez might de-
cide to testify against Saechao, or the reverse. Kronenwe[er
himself told the judge in Saechao’s prosecution that he was
concerned about the potential conflict and uneasy about rep-
resenting both defendants. But he did so for some six weeks,
until he withdrew as Alonso-Bermudez’s lawyer and the
public defender organization named John Bachman to take
his place. This did not satisfy the judge in Saechao’s prosecu-
tion; he wanted an unconditional waiver of any conflict from
both Saechao and Alonso-Bermudez. Saechao provided one;
Alonso-Bermudez declined. He said that he would waive a
conflict in Saechao’s current prosecution but not with respect
to other offenses in which the two may have been confeder-
ates. Bachman told the judge in Saechao’s case that his cli-
ent’s refusal to execute a general waiver made Kronen-
we[er’s position as Saechao’s lawyer untenable. As the trial
date approached, and the prosecutor listed Alonso-
Bermudez as a potential witness in Saechao’s case, the trial
judge reached that conclusion and disqualified Kronen-
we[er.
By then Bachman had indicated that Alonso-Bermudez
was willing to sign a general waiver. Bachman announced
that position, however, about the same time as Alonso-
Bermudez fired him, and the judge thought that Bachman no
longer could speak for Alonso-Bermudez. Saechao went to
trial with a new lawyer and was convicted. Wisconsin’s ap-

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No. 20-1356 3
pellate court affirmed, rejecting his argument that the trial
judge had violated the Constitution by depriving him of his
chosen lawyer. And a federal district court denied Saechao’s
request for collateral relief. 2020 U.S. Dist. LEXIS 33308 (W.D.
Wis. Feb. 24, 2020). The magistrate judge’s comprehensive
and thoughtful opinion makes it unnecessary for us to pro-
vide greater detail about the events in state court.
A state court’s decision addressing the merits of a legal
claim, as Wisconsin’s judiciary did, cannot be upset on col-
lateral review unless the adjudication “resulted in a decision
that was contrary to, or involved an unreasonable applica-
tion of, clearly established Federal law, as determined by the
Supreme Court of the United States”. 28 U.S.C. §2254(d)(1).
Wisconsin’s Court of Appeals recognized that Wheat v. Unit-
ed States, 486 U.S. 153 (1988), supplies the controlling author-
ity, and the federal district court held that the state judiciary
had applied Wheat reasonably. Indeed, the combination of
Wheat with §2254(d)(1) gives the state a double dose of def-
erence. Under Wheat, even in federal court (and even on di-
rect appeal, and even when there have been unequivocal
waivers of any conflict), the trial judge has discretion to dis-
qualify counsel to avoid a serious risk of conflict. 486 U.S. at
158–64. And “[t]he more general the [federal] rule, the more
leeway [state] courts have in reaching outcomes in case-by-
case determinations.” Yarborough v. Alvarado, 541 U.S. 652,
664 (2004).
Wheat does insist that disqualification is inappropriate
unless there is serious risk of an actual conflict, and Saechao
pitches his argument on this point. He observes that the trial
judge disqualified Kronenwe[er in part because the judge
did not think that criminal-defense lawyers ever should rep-

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4 No. 20-1356
resent multiple clients charged with the same crime. Moreo-
ver, Saechao adds, the state’s court of appeals gave some
weak reasons for thinking that Kronenwe[er faced a serious
risk of conflict. The prosecutor has abandoned a few of the
state court’s reasons. But the fact remains that the weakness
of some reasons is just a case-specific shortcoming, not a le-
gal conflict between the state judiciary’s approach and the
Wheat standard. As long as other, sufficient, reasons remain,
the state’s decision withstands federal collateral review.
The federal magistrate judge thought that at least one of
the state judiciary’s reasons suffices, given the deference re-
quired by Wheat and the additional layer of deference pro-
vided by §2254(d)(1): the fact that Alonso-Bermudez ap-
peared on the prosecution’s witness list. That created a risk
that Kronenwe[er would be called on to cross-examine his
former client, potentially using confidential information he
had received. Saechao concedes that this is a good reason for
disqualification in principle but maintains that it is not a
good reason in practice, because (he insists) the prosecutor
was unlikely to call Alonso-Bermudez. Saechao was charged
with being one among a criminal gang of four. Rohmeyer
and Schul^ had agreed to testify for the prosecution. So
why, Saechao asks, would the prosecutor have called
Alonso-Bermudez, who was standing on his right to a trial
and was unlikely to turn state’s evidence?
We know that, when Saechao’s trial came, the prosecutor
did not call Alonso-Bermudez. But hindsight is a poor guide
to action. Raising the possibility of calling Alonso-Bermudez
as a witness is hard to call a ploy to achieve Kronenwe[er’s
removal. All too often co-defendants who have promised to
testify balk or “lose their recollection” at trial. And co-

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No. 20-1356 5
defendants who proclaim their innocence and insist that
they will go to trial change their minds on the eve of trial,
agree to plead guilty, and negotiate for terms—which may
include a promise to testify against a confederate in crime.
On the day that the trial judge disqualified Kronenwe[er,
Rohmeyer and Schul^ were promising to cooperate, while
Alonso-Bermudez said that he would not do so. By the day
of trial the situation could have been reversed. An uncondi-
tional waiver of conflicts from Alonso-Bermudez might have
persuaded the trial judge to take the risk that a decision by
Alonso-Bermudez to testify would not ruin the trial if
Kronenwe[er remained as Saechao’s lawyer, but Alonso-
Bermudez was unwilling to provide a comprehensive waiv-
er—and that was a problem, because cross-examination of
Alonso-Bermudez at Saechao’s trial could have ventured in-
to some of Alonso-Bermudez’s other crimes. This left a seri-
ous risk, and Wheat gives the trial judge a measure of defer-
ence when deciding how to proceed.
Saechao maintains that reasoning along the lines just laid
out would conflict with United States v. Turner, 594 F.3d 946
(7th Cir. 2010), which tells district judges not to assume too
readily that a potential for conflict will ripen into a serious
actual conflict. Put that way, the devil is in the phrase “too
readily”; of course a judge should not do anything too readily
and should not be a sucker for claims about conflicts that
may never come to fruition. The issue in any given case is
whether the trial judge abused his discretion in thinking that
the risk of a serious conflict had been established. An affirm-
ative answer for Turner does not imply that the same answer
is called for in Saechao’s case.

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6 No. 20-1356
Perhaps more important, Turner just doesn’t ma[er on
collateral review under §2254(d)(1), which says that the writ
must not issue unless the state court’s decision is contrary to
“clearly established Federal law, as determined by the Supreme
Court of the United States” (emphasis added). This means that
decisions by the federal courts of appeals do not count, ex-
cept to the extent that they illuminate the meaning of the
Supreme Court’s decisions. See Kernan v. Cuero, 138 S. Ct. 4
(2017); Parker v. MaEhews, 567 U.S. 37, 48–49 (2012); Fayemi v.
Ruskin, 966 F.3d 591, 594 (7th Cir. 2020). Turner concerned
how federal district judges should manage the discretion
they possess under Wheat; it does not modify the Supreme
Court’s own standard or limit the discretion of state judges.
AFFIRMED

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