Rogelio Promotor v. WILLIAM POLLARD, Warden, Green Bay Correctional Institution

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2292
ROGELIO PROMOTOR,
Petitioner-Appellant,
v.
WILLIAM POLLARD, Warden,
Green Bay Correctional Institution,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:07-CV-00363—J.P. Stadtmueller, Judge.
ARGUED NOVEMBER 12, 2009—DECIDED DECEMBER 14, 2010
Before CUDAHY, MANION, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. On April 8, 2003, Rogelio
Promotor got drunk, drove at speeds up to 86 miles
per hour, tore through two red lights, and crashed into
a passing car. He killed four people and severely
injured two others. He pleaded no contest in Wisconsin
state court to four counts of homicide by intoxicated use
of a motor vehicle and two counts of causing injury by
intoxicated use of a motor vehicle.

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2 No. 09-2292
Before sentencing, Promotor cooperated in the creation
of a defense pre-sentence investigation report which
stated that Promotor consumed up to 23 beers in the
hours preceding the crash. The court mentioned the
“23 beers” figure twice when it sentenced Promotor to
66 years of imprisonment and 28 years of supervised
release.
Promotor filed post-conviction requests for relief with
the Wisconsin state courts, which were denied. He then
filed a petition for a writ of habeas corpus in federal
court. He asserted that his due process rights were
violated because he was sentenced based on inaccurate
information—the 23 beers figure from the defense pre-
sentence report. He also argued that he received ineffec-
tive assistance of counsel. The district court denied the
petition, finding that Promotor procedurally defaulted
his due process claim by not objecting to the information
in his pre-sentence report. Promotor requested, and the
district court granted, a Certificate of Appealability on
this question, and on whether the Wisconsin state courts
violated Promotor’s due process rights by sentencing
him based on inaccurate information.
We agree with the district court that Promotor procedur-
ally defaulted his challenge to the allegedly inaccurate
information in the pre-sentence report because he failed
to object to it. There is no valid cause that excuses
this default. And even if he had not defaulted his
claim, Promotor did not demonstrate that the trial court
relied on materially incorrect information in his sentencing.
Promotor also requested a Certificate of Appealability
on his ineffective assistance of counsel arguments. The

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No. 09-2292 3
district court denied this request, finding that Promotor
procedurally defaulted his claim by failing to fully and
fairly present it to the Wisconsin Supreme Court.
Promotor asks that we expand his Certificate of Appeal-
ability to address these arguments. Because we agree
with the district court that Promotor procedurally de-
faulted his ineffective assistance of counsel claim, we
decline to expand the Certificate of Appealability.
We affirm the district court’s decision.
I. BACKGROUND
On April 8, 2003, after drinking with his friends, 19-year-
old Rogelio Promotor decided to drive. He sped through
a residential area and drove through a red light. Wit-
nesses described him as “careening” and “swerving”
down the street, and an accident reconstruction later
estimated his speed at between 77-86 miles per hour.
He drove through a second red light and crashed into
another passing car. Travis Cates, Antonio Mazaba,
Michael Popp, and Troy Vanderhei were killed. Shaun
Foerster and Laura Lewis were severely injured.
Promotor does not remember driving or the subse-
quent collision. Approximately two hours and forty
minutes after the crash, his blood alcohol concentration
was measured at .161 g/dL. He pleaded no contest in
Wisconsin state court to four counts of homicide by
intoxicated use of a motor vehicle and two counts of
causing great bodily harm by intoxicated use of a motor
vehicle.

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4 No. 09-2292
Before sentencing, Promotor participated in the
creation of an “Alternative Presentence Investigative
Report” (“Alternative Report”). The report was
prepared by a “Sentencing & Disposition Specialist” at
the request of Promotor’s attorney. The Specialist used
a Spanish-language interpreter during his interviews
with Promotor. The report was designed to supplement
information provided in the Department of Corrections
(“DOC”) Pre-sentence Report, and to offer a more
detailed picture of Promotor, his background, and experi-
ences. The Alternative Report described Promotor’s
upbringing, including the fact that he started working
while in grade school and dropped out in the sixth
grade so he could earn more money and help support
his family. Promotor indicated that he is literate in
Spanish, but not in English. The report continued by
describing some of Promotor’s personal relationships,
including his interactions with his alcoholic father. His
father was a chronic binge drinker who was often physi-
cally abusive to Promotor. The report also described
Promotor’s own problems with alcohol. Although he
generally limited his drinking to the weekends, he
also drank alcohol secretly at work. His mother was
concerned about Promotor’s drinking, and lectured him
on several occasions. His girlfriend asked him to stop
drinking entirely. His usual habit was to drink up to 12-
15 cans of beer with friends, and, the report stated that
on at least one occasion, Promotor consumed a case of
beer by himself, which made him sick.
Under a section entitled, “Client’s Version of Offense
and Surrounding Circumstances,” the Alternative Report

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No. 09-2292 5
detailed Promotor’s alcohol consumption on the day of
the collision. He first had 15-16 cans of beer from a case
of 24. When that case was finished, one of Promotor’s
friends bought a second one, and Promotor had another
six beers. Promotor recalled starting to drink one more
beer from a third 24-case but did not remember anything
after that. Added together, the Alternative Report de-
scribes Promotor drinking 22-23 cans of beer on the
day of the fatal crash.
Promotor’s sentencing hearing was lengthy, and a
Spanish-language interpreter was present the entire
time. First the surviving victims spoke. Next to speak
were the families of the victims who were killed. Videos
and letters were also submitted on behalf of the vic-
tims’ friends and families. Both the Alternative and
DOC sentencing reports were then presented. The court
had previously reviewed each report and found typo-
graphical errors and other small mistakes. It suggested
corrections, and for each revision, asked the prosecutor
and Promotor’s attorney if there was any objection to
the proposed change. The court asked defense counsel
if he had “any other additions, deletions, or revisions
to the defense PSI”. Defense counsel answered, “No,
your Honor.” In reviewing the DOC pre-sentence report,
Promotor and his attorney discussed individual issues
at least three times, and each time Promotor’s attorney
stated that there was no objection to the requested change.
Following the review of the pre-sentence reports, the
prosecutor detailed the plea negotiations. The court
asked Promotor if he understood the sentence that the

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6 No. 09-2292
state was recommending; if he understood that his attor-
ney was free to argue on his behalf; and if he under-
stood that the court was not obligated to follow their
negotiations. Promotor replied “yes” to each question.
The attorneys then presented their sentencing recom-
mendations to the court: first the prosecutor, then
Promotor’s attorney. Promotor’s attorney noted that “this
is extremely tough for everybody. . . . Even the person . . .
who did the [Alternative] report. Everybody. Even my
investigator. Everybody . . . that’s involved with this
case is taken aback at how devastating and how sad it
is for everybody involved. . . . Mr. Promotor is both
remorseful and takes full responsibility for his actions.”
Promotor’s mother was next to speak. She revealed
her suffering over the incident, and how it affected her
entire family. The court then noted the letters that
were submitted in support of Promotor, including one
from his 10-year-old brother. The final step before the
court announced its sentence was Promotor’s allocution.
Promotor stated: “The only thing I’d like to say is I apolo-
gize to the family and for you to forgive me. . . . I am
very sorry for what has happened, but I leave it in
God’s hands as far as what’s going to happen now.”
The court began its statement of sentencing by
describing how it arrived at its decision. It first con-
sidered the offense severity, then Promotor’s character,
and finally how much of a future risk he posed. The
offense severity was “of the most serious nature”. It was
“a quadruple homicide by use of a vehicle with a pro-
hibited blood alcohol content and a double injury by

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No. 09-2292 7
intoxicated use of a vehicle with a prohibited blood
alcohol content. For those reasons, this is a case of the
most aggravated offense severity.” Second, as to
Promotor’s character, the court noted his young age, and
that he had spared the victims’ families and friends the
trauma of a jury trial. Additionally, he commended
Promotor’s consistent employment and good work
ethic. He also noted that Promotor did not have any
weapons, drug, or violent convictions. But the court
also noted Promotor’s “horrible” driving record and
underage drinking: he had been arrested four times
for driving without a license, twice for underage
drinking, and on seven occasions bench warrants were
issued for his arrest because he failed to appear in
court. The court said that the prior incidents should
have been “warning signs for you”. Finally, the court
decided the future risk to the community was high
because Promotor “did not learn better notwith-
standing those warning signs.” Twice, the court noted
the 23-beers figure from the Alternative Report. Promotor
was sentenced to 66 years of initial confinement
followed by 28 years of extended supervision. The court
stated that under Wisconsin’s truth in sentencing
policy, Promotor would serve the 66 years day-for-day.
Promotor’s sentence meant he would be in prison until
age 85.
Promotor filed a motion for post-conviction relief. He
argued that he was sentenced based on the 23-beers figure
in the Alternative Report, which was inaccurate. He
submitted an affidavit stating that he did not tell the
interviewer or anyone else that he drank 23 beers. He

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8 No. 09-2292
remembered saying he may have had as many as 15
beers in total, but that it was more like 13 or 14. He also
said that the Alternative Report was not read to him
in Spanish before his sentencing hearing, that the sen-
tencing hearing was the first time he heard the 23-
beers figure, and that he was confused when the judge
used the number. Promotor also submitted an affidavit
from his post-conviction counsel that included witness
statements taken from police reports. Both witnesses
were with Promotor on the night of the crash. One wit-
ness said Promotor drank 12-13 beers; the second said
Promotor had eight or more beers and then another four
or five more. Finally, Promotor submitted an affidavit of
a chemist and forensic consultant. That affidavit stated
that based on Promotor’s blood alcohol measurement of
.161 g/dL at 2:10 a.m., it was unreasonable and unlikely
that Promotor consumed 23 beers if he began drinking
at the time he said he began. The required alcohol levels
would kill most people, or at best leave them comatose.
Even chronic alcoholics would not typically exhibit the
calculation pattern that would be required for Promotor
to have consumed 23 beers in the described time frame.
The affidavit concluded that Promotor consumed some-
where between nine and 13 beers on the night of the crash.
The same judge who presided over the sentencing
hearing denied Promotor’s motion for post-conviction
relief. He held that Promotor waived his objection to the
23 beers figure by not disputing it. And even if the argu-
ment had not been waived, Promotor did not offer clear
and convincing evidence that the information in the
report was inaccurate. Finally, the court concluded that

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No. 09-2292 9
even if the information in the report was inaccurate,
Promotor did not meet his burden of showing by clear
and convincing evidence that the court prejudicially
relied on the 23 beers figure. The court stated in its
order denying post-conviction relief that “[w]hether it
was nine to 13 beers, . . . or 22-23 beers . . . the defendant
was so alcohol-impaired that he had no recollection of
his crimes.”
Promotor filed a notice of appeal from the judgment
of conviction and the decision denying his postconvic-
tion motion. The Wisconsin Court of Appeals held that
Promotor waived his argument of alleged inaccuracy in
the report when he failed to object at sentencing. The
court then addressed the claim as one of ineffective
assistance of counsel and found that even if Promotor’s
attorney erred, Promotor was not prejudiced because
the sentence would have been the same even if the court
had originally been given a lower figure for the number
of beers Promotor consumed. Promotor filed a petition
for review in the Wisconsin Supreme Court, which was
denied.
Promotor filed a timely petition for a writ of habeas
corpus pursuant to the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254.
He argued that the Wisconsin courts violated his due
process right to be sentenced based on accurate infor-
mation and that he had not waived that argument. He
also argued that he received ineffective assistance of
counsel. The district court denied the petition. It ruled
that the due process claim was procedurally barred

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10 No. 09-2292
because the Wisconsin Court of Appeals’ finding of
waiver constituted an adequate and independent state
law ground that could not be reviewed absent cause
and prejudice. Further, the court ruled that Promotor
procedurally defaulted his ineffective assistance of
counsel claim by failing to adequately address it in his
petition to the Wisconsin Supreme Court.
Promotor requested a Certificate of Appealability
(“COA”) from the district court. The court granted a
COA as to whether Promotor procedurally defaulted
his due process claim and whether the Wisconsin state
courts violated his due process rights by sentencing
him based on inaccurate information. It denied a COA
on Promotor’s challenge regarding ineffective assistance
of counsel. Promotor timely appealed. At issue before
this court is whether Promotor’s failure to object to the
23 beers figure at sentencing constitutes a procedural
bar to his claimed due process violation. Promotor also
asks us to expand his COA to address his ineffective
assistance of counsel claims.
II. ANALYSIS
A. Due Process Claim was Procedurally Defaulted
Promotor petitioned the federal district court for a writ
of habeas corpus, asserting that his due process rights
were violated because he was sentenced based on inac-
curate information. The court denied his petition, ruling
that the due process claim was procedurally barred
because the Wisconsin Court of Appeals’ finding of

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No. 09-2292 11
waiver was an adequate and independent state law
ground. We review the district court’s findings of fact
for clear error and its rulings on questions of law de
novo. Smith v. Gaetz, 565 F.3d 346, 351 (7th Cir. 2009);
Foster v. Schomig, 223 F.3d 626, 634 n.4 (7th Cir. 2000).
Generally, a federal court may not grant habeas relief
if the state court’s decision was based on an adequate
and independent state law ground. Ward v. Jenkins, 613
F.3d 692, 696 (7th Cir. 2010). The adequacy of the state
ground decision is a question of federal law, and the
ground is considered adequate only if the state court
applies the rule in a consistent and principled way.
Miranda v. Leibach, 394 F.3d 984, 992 (7th Cir. 2005).
An adequate and independent state law ground does
not, however, absolutely preclude review of a pro-
cedurally defaulted claim during federal habeas review.
An equitable exception exists if the petitioner can
establish cause and prejudice for the default, or
establish that the failure to consider the defaulted claim
will result in a fundamental miscarriage of justice.
Dretke v. Haley, 541 U.S. 386, 388 (2004); Johnson v.
Loftus, 518 F.3d 453, 455-56 (7th Cir. 2008).
1. Waiver is an Adequate and Independent State
Law Ground
Promotor contends that the state court’s finding of
waiver was not an adequate and independent state
law ground because Wisconsin’s application of waiver law
was unsettled at the time of his sentencing. He further
argues that even if the law were settled, cause and preju-

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12 No. 09-2292
dice precludes a finding of default. We reject these argu-
ments.
Promotor accurately argues that a procedural default
does not bar consideration of a federal claim unless the
procedure is a “firmly established and regularly fol-
lowed state practice.” Smith v. McKee, 598 F.3d 374, 382
(7th Cir. 2010). Further, the state rule at issue must
have been consistently applied at the time of the alleged
default. Franklin v. Gilmore, 188 F.3d 877, 882 (7th Cir.
1999). In support of his position that waiver law was not
firmly established in Wisconsin in 2003, Promotor offers
State v. Groth, which states: “Whether, given the para-
mount importance of the integrity of the sentencing
process, waiver may be invoked to preclude a defen-
dant’s challenge to a sentencing based on inaccurate
information remains unclear; the cases the parties cite
simply do not say.” 258 Wis.2d 889, 655 N.W.2d 163, 172
(Wis. Ct. App. 2002) (internal citations and quotations
omitted), abrogated on other grounds by State v. Tiepelman,
291 Wis.2d 179, 717 N.W.2d 1 (2006). In Groth, the pros-
ecutor repeatedly asserted, without any support in the
record, that the defendant beat his pregnant girlfriend.
Because there was no support in the record for the in-
flammatory statements and the court apparently re-
lied on them, the court found that the integrity of the
sentencing process required resentencing. Groth, 655
N.W.2d at 173. Groth is distinguishable from this case
for significant reasons. The inaccurate information in
Groth came from the prosecutor, not the defense. And
there was no factual basis for the information, but here,
the information was submitted in a pre-sentence report

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No. 09-2292 13
and reviewed before filing. The most important aspect
of Groth, though, is that the court decided that the
interests of justice required excusing the waiver.
Groth aligns with the regular practice of Wisconsin
courts, which have consistently found that a party who
fails to object at the trial court waives the right to later
appeal that issue unless justice so requires. This general
principle was described in State v. Holt: “The general
rule that an objection not made to the trial court is
waived is rooted in principles of efficient judicial ad-
ministration. Those principles demand that convictions
remain in repose unless error has been committed or an
injustice has been done.” 128 Wis.2d 110, 382 N.W.2d 679,
686 (Wis. Ct. App. 1985), superseded by statute on other
grounds by WIS. STAT. § 940.225(7). See also State v. Boshcka,
178 Wis.2d 628, 496 N.W.2d 627, 632 (Wis. Ct. App. 1992)
(“unobjected-to errors are generally considered waived;
and the rule applies to both evidentiary and constitu-
tional errors.”) And this rule has been repeatedly
applied to defendants, like Promotor, who fail to object
to allegedly inadmissible or inaccurate information. See,
e.g., State v. Gove, 148 Wis.2d 936, 437 N.W.2d 218, 218
(1989) (defendant who “actively contributed to what he
now claims was trial court error” waived right to
contest error); Handel v. State, 74 Wis.2d 699, 247 N.W.2d
711, 714 (1976) (court did not err in considering facts
in pre-sentence report that were not challenged by de-
fendant).
As a general rule, Wisconsin courts find waiver if
information is not objected to at the trial court. And this

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14 No. 09-2292
was true in 2003 at the time of Promotor’s sentencing.
But there is a difference between a consistent applica-
tion and an absolute application. A regular practice
may still, in the interest of justice, allow room for flexi-
bility. See, e.g., State v. Leitner, 247 Wis.2d 195, 633
N.W.2d 207, 215 (Wis. Ct. App. 2001) (choosing to “ignore
the . . . waiver rule” because the case presented an impor-
tant recurring issue). Wisconsin courts have regularly
followed the rule that information that is not contested
at trial cannot be objected to later. The exceptions do
not disprove the rule. We find that Wisconsin waiver
law was applied in a consistent and principled way,
and therefore constitutes an adequate and independent
state law ground that cannot be reviewed absent cause
and prejudice.
2. Cause and Prejudice Exception Does Not Apply
Even though Promotor procedurally defaulted his
claim regarding the allegedly inaccurate information in
the Alternative Report, the default could be excused if
he can establish cause and prejudice, or establish that the
failure to consider the defaulted claim will result in a
fundamental miscarriage of justice. Dretke, 541 U.S. at 388;
Loftus, 518 F.3d at 455-56. Promotor does not argue that
failure to consider his defaulted claim will result in a
fundamental miscarriage of justice. Instead, he asserts
that a language barrier provides cause to excuse his
default. Alternatively, he argues that the waiver was
due to the deficient performance of his attorney. Both of
these arguments must fail.

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No. 09-2292 15
Cause for a default is ordinarily established by showing
that some type of “external impediment” prevented the
petitioner from presenting his claim. Lewis v. Sternes, 390
F.3d 1019, 1026 (7th Cir. 2004). Prejudice is established
by showing that the violation of the petitioner’s federal
rights “worked to his actual and substantial disad-
vantage, infecting his entire trial with error of constitu-
tional dimensions.” Id. (emphasis in original) (citation
omitted). According to the Alternative Report, Promotor
speaks Spanish, and is not literate in English. He
argues that this establishes cause to excuse his defaulted
objection. But we have found that circumstances such
as youth and lack of education—which similarly impede
communication—do not constitute cause. Dellinger v.
Bowen, 301 F.3d 758, 766 (7th Cir. 2002). And we have
also explicitly held that illiteracy does not constitute
cause. Henderson v. Cohn, 919 F.2d 1270, 1272 (7th Cir.
1990). In addition, during Promotor’s lengthy sen-
tencing hearing, where a Spanish-language interpreter
was present the entire time, the court proceeded methodi-
cally through each pre-sentence report. It suggested
small typographical corrections and asked each party if
any other “additions, deletions, or revisions” were neces-
sary. At least three times during the court’s discussion
of the DOC pre-sentence report, the record reflects that
there were private attorney-client discussions between
Promotor and his lawyer. After each discussion, his
lawyer stated whether Promotor agreed with the pro-
posed change to the report. These discussions show that
Promotor was not prevented from voicing disapproval,
and in fact was given ample opportunity to express any

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16 No. 09-2292
objections. Thus his failure to also object to aspects of
the Alternative Report was an internal decision, not an
external impediment.
Alternatively, Promotor argues that cause to excuse
his procedural default exists because he received ineffec-
tive assistance of counsel. Ineffective assistance of counsel
can constitute cause to set aside a procedural bar. Gaetz,
565 F.3d at 352. However, a claim of attorney ineffective-
ness which is defaulted in state court cannot be the
basis for cause, unless the petitioner can establish cause
and prejudice for the ineffectiveness claim as well. See
Edwards v. Carpenter, 529 U.S. 446, 452-54 (2000). And as
discussed in Section C below, Promotor defaulted his
ineffective assistance of counsel claim and he does not
offer cause-and-prejudice to excuse this default.
Promotor does not establish cause to excuse his proce-
dural default and because he cannot establish cause,
we will not address the prejudice prong. By not objecting
to the allegedly inaccurate information in the Alterna-
tive Report, Promotor lost his ability to later contest
it. His default is not excused. The district court was
correct in reaching the same conclusion.
B. Due Process Claim Fails
Even if Promotor had not procedurally defaulted his
due process claim, it would fail.
Because the habeas petition in this case was filed under
the AEDPA, the standard of review contained in that
Act governs this appeal. Lindh v. Murphy, 521 U.S. 320, 322-

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No. 09-2292 17
23 (1997). When the state court has decided its case on
the merits, a federal court can grant a writ of habeas
corpus only if 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 presented in state court. 28 U.S.C.
§ 2254(d). Promotor argues that this deferential standard
of review should not apply to his due process claim
because the Wisconsin Court of Appeals did not directly
address the merits of the claim in finding that it was
procedurally barred. However, in discussing the merits
of Promotor’s ineffective assistance of counsel claim,
the court did make factual findings that are vital to the
due process claim, and we will employ the deferential
standard of review that the AEDPA prescribes in evalu-
ating these findings.
Promotor contends that his due process rights were
violated because he was sentenced based on inaccurate
information. He argues that a defendant has a constitu-
tional due process right to be sentenced based on
accurate information. He is correct. See, e.g., Ben-Yisrayl
v. Buss, 540 F.3d 542, 554 (7th Cir. 2008) (citing Townsend
v. Burke, 334 U.S. 736 (1948) and United States v. Tucker,
404 U.S. 443 (1972) for “the general proposition that a
criminal defendant has the due process right to be sen-
tenced on the basis of accurate information.”). But not
all inaccuracies deprive a defendant of due process; the
incorrect information must be “materially untrue”.
Townsend, 334 U.S. at 741. And a defendant who requests
resentencing must establish that the sentencing court
also relied on the critical inaccurate information when

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18 No. 09-2292
announcing its sentence. Simonson v. Hepp, 549 F.3d
1101, 1107 (7th Cir. 2008). A sentencing court demon-
strates actual reliance on misinformation when “the
court gives explicit attention to it, founds its sentence
at least in part on it, or gives specific consideration to
the misinformation before imposing sentence.” Lechner
v. Frank, 341 F.3d 635, 639 (7th Cir. 2003) (quotations
omitted).
If the “23 beers” figure in the Alternative Report was
materially incorrect and the sentencing court relied on
it in sentencing, Promotor would be entitled to a
resentencing hearing. However, Promotor’s case does not
meet this standard because, as the Wisconsin Court of
Appeals noted, the trial court did not rely on the fig-
ure. The court found that “[b]ased on the [trial] court’s
comments at sentencing and in response to [Promotor’s
post-conviction] motion, we are satisfied that the sen-
tence would have been the same even if the court had
originally been given a lower figure for the number of
beers Promotor consumed.”
We do not think it was unreasonable for the Wisconsin
Court of Appeals to conclude that the trial court did not
rely on the figure. It is true that the judge mentioned
the 23-beer figure twice during sentencing. However,
these mentions came but twice over the course of
26 pages of sentencing hearing transcript, in which the
court thoroughly explained its considerations in deter-
mining Promotor’s sentence: his decision to drink irre-
sponsibly in spite of prior “warning signs”, the erratic
and dangerous way in which he drove, his seriously
impaired condition that caused him to forget significant

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No. 09-2292 19
portions of the evening, and the tragic result of his ac-
tions. And the court did state that it did not rely on the
figure in its order denying Promotor’s motion for post-
conviction relief, which, although not dispositive, see,
e.g., United States v. Montoya, 891 F.2d 1273, 1280-81
(7th Cir. 1989), also supports the conclusion of the ap-
pellate court.
Even if Promotor had not procedurally defaulted his
claim of inaccuracy, the Wisconsin Court of Appeals’
finding that the trial court did not rely on the informa-
tion was not unreasonable. The district court properly
denied his request for a writ of habeas corpus.
C. Certificate of Appealability was Properly Denied
Due to Default
Before a habeas petitioner may appeal to this court, the
district court must consider whether to grant the
petitioner a Certificate of Appealability (“COA”). 28
U.S.C. § 2253 (c); Fed. R. App. P. 22(b). The district court
may issue a COA only if the applicant has made a sub-
stantial showing of the denial of a constitutional right.
Arredondo v. Huibregtse, 542 F.3d 1155, 1165 (7th Cir.
2008). Promotor requested a COA on his ineffective
assistance of counsel claims, which was denied. He asks
that we expand the COA to address these claims.
The district court denied Promotor’s COA because it
found that he defaulted this claim by failing to fully and
fairly present it to the Wisconsin Supreme Court. Indeed,
Promotor failed to make any specific argument on the
topic, and instead simply attached the Wisconsin Court

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20 No. 09-2292
of Appeals’ decision discussing ineffective assistance
of counsel. The district court could have resurrected
Promotor’s procedurally defaulted claim if it found
cause and prejudice. But the court did not so find, and
held that “Promotor does not establish that application
of the procedural default exception is warranted and
this court’s finding of procedural default is not rea-
sonably debatable.” Promotor v. Pollard, No. 07-CV-363,
2009 WL 1373935, at *4 (E.D. Wis. May 15, 2009).
We agree with the district court. To obtain federal
habeas review, a state prisoner must first submit his
claims through state review. Johnson v. Hulett, 574 F.3d
428, 431 (7th Cir. 2009). To satisfy this requirement,
Promotor must have fairly presented the substance of
his claims to the state courts by articulating both the
operative facts and applicable law that entitles him
to relief. Id. Appending a prior court’s decision without
developing an independent position does not allow
meaningful review of the substance of the claims.
Promotor’s decision to even attempt this strategy is
puzzling since at the state appellate level he lost his
ineffective assistance of counsel claim on the merits.
And because Promotor was not proceeding pro se, this
decision is inexcusable.
We decline to expand Promotor’s COA.
III. CONCLUSION
The decision of the district court is AFFIRMED.
12-14-10

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