In the United States Court of Appeals For the Seventh Circuit ____________________ No. 19-1476 CHRISTOPHER R. GISH, Petitioner-Appellant, v. RANDALL HEPP, Warden, Respondent-Appellee. ____________________ Appeal from the United States District Court for the Western District of Wisconsin. No. 3:15-cv-730 — James D. Peterson, Chief Judge. ____________________ ARGUED NOVEMBER 7, 2019 — DECIDED APRIL 3, 2020 ____________________ Before HAMILTON, SCUDDER, and ST. EVE, Circuit Judges. SCUDDER, Circuit Judge. Christopher Gish pleaded guilty to first-degree reckless homicide in Wisconsin state court for killing his longtime girlfriend and the mother of his children. He appealed, claiming that his trial counsel provided ineffec- tive assistance by failing to investigate an involuntary intoxi- cation defense. Police found Gish disoriented and delirious on the night of the killing, and he claimed that rare side effects from taking prescription Xanax affected his ability to 2 No. 19-1476 appreciate the wrongfulness of his conduct. After the Wiscon- sin Court of Appeals rejected the claim and affirmed his con- viction, Gish turned to federal court and wound his way through a thicket of habeas proceedings. The district court held an evidentiary hearing but denied relief because Gish failed to show that his counsel’s deficient performance re- sulted in prejudice: even if counsel had investigated involun- tary intoxication, that defense was so unlikely to succeed that Gish still would have pleaded guilty. We affirm. I A Early in the morning on July 14, 2012, Wisconsin police found Christopher Gish soaking wet, unable to answer ques- tions, and wandering in an unsteady manner on railroad tracks near the Milwaukee airport. The officers took Gish to the hospital, where he told paramedics that he had blacked out. He then proceeded to make a series of nonsensical state- ments suggesting that he did not understand his wherea- bouts. At one point, for instance, Gish stated that “all I saw was red” and “you are in my bedroom, why are you in my room?” Upon ascertaining Gish’s home address, the police entered and found his longtime girlfriend and the mother of his children, Margaret Litwicki, stabbed to death in a bed- room. Once Gish’s condition stabilized, he agreed to an inter- view with the police. A videotape showed that Gish gained lucidity over the course of the questioning. Initially Gish de- nied any memory of the previous night, but later in the inter- view he confessed to stabbing Litwicki multiple times in his bedroom. He said he attacked Litwicki because he suspected No. 19-1476 3 that she was having an affair and believed she might take his kids from him. Wisconsin authorities charged Gish with first-degree in- tentional homicide, which carries a mandatory sentence of life imprisonment. See WIS. STAT. §§ 939.50(3)(a), 940.01(1)(a). Na- than Opland-Dobs served as Gish’s court-appointed counsel. Gish told Opland-Dobs that he had taken prescription Lamic- tal and Xanax before the homicide and thought those medica- tions may have induced his erratic behavior in a way that would afford some legal defense to the charge. Opland-Dobs researched the effects of ...
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