Opinion
Case No. 03-C-0211.
September 9, 2005.
DECISION AND ORDER
On March 14, 2003 the petitioner, Frank McClinton, filed apro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After trial by jury, the petitioner was convicted of three counts of being a felon in possession of a firearm in violation of Wis. Stat. §§ 941.29(2)(a) and 939.05 (1997-98), and one count of maintaining a place of drug trafficking in violation of Wis Stat. § 961.42(1) (1997-98). The petitioner was sentenced to three consecutive two-year terms on the firearms counts, and one consecutive year for maintaining a drug trafficking place. The judgment of conviction was entered on January 17, 2000.
The petitioner challenges the judgment of conviction on the following grounds: 1) double jeopardy; 2) ineffective assistance of trial counsel; 3) denial of due process in sentencing him on three counts of being a felon in possession of a firearm and for disallowing a defense witness; and 4) abuse of trial court discretion.
The court conducted a preliminary examination of the petition in accordance with Rule 4 of the Rules Governing § 2254 Cases. The court determined that summary dismissal was not appropriate as "it does not plainly appear from `the face of the petition' that the petitioner is not entitled to relief' and ordered the respondent to answer the petition. (Court's Order of April 30, 2003, at 2). The respondent answered and the parties subsequently briefed the petition. This matter is ready for disposition and will be addressed below.
The court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 because the matter arises under federal statutes. Venue is proper under 28 U.S.C. § 1391. The case was assigned according to the random assignment of civil cases pursuant to 28 U.S.C. § 636(b)(1)(B) and General Local Rule 72.1 (E.D. Wis.). The parties have consented to United States magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c) and General Local Rule 73.1 (E.D. Wis.).
BACKGROUND
The petitioner was charged by an amended information in Milwaukee County Circuit Court with one count of delivery of cocaine, three counts of possession of a firearm by a convicted felon and one count of maintaining a drug house. Following a jury trial the petitioner was convicted of three counts of possession of a firearm in violation of Wis. Stat. §§ 941.29(2)(a) and 939.05, and one count of maintaining a place of drug trafficking in violation of Wis Stat. § 961.42. The petitioner was acquitted of the delivery of a controlled substance charge. The petitioner was sentenced to a total of seven years in prison. (Answer to the Petition for Writ of Habeas Corpus [Answer], Exh. A). The petitioner was released on discretionary parole after filing this action. His parole status constitutes "custody" for purposes of seeking habeas relief. Jones v. Cunningham, 371 U.S. 236, 243 (1963).
The petitioner's appellate counsel filed a "no merit" report with the Wisconsin Court of Appeals pursuant to Anders v. California, 386 U.S. 738 (1967), and Wis Stat. § 809.32. Petitioner's counsel raised and rejected as meritless six potential issues for appeal: 1) the preliminary hearing, 2) the trial court's denial of trial counsel's motion for a Miranda Goodchild hearing, 3) the trial court's denial of trial counsel's motion to withdraw, 4) the jury's credibility assessments of the evidence and the sufficiency of the evidence, 5) the ramifications of the petitioner's acquittal on the drug delivery charge, and 6) the trial court's exercise of sentencing discretion. (Answer, Exh. D at 2).
See Miranda v. Arizona, 384 U.S. 436 (1966); State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133 N.W.2d 753 (1965).
The petitioner filed a pro se response to the "no merit" report. He identified the following potential issues: 1) the alleged multiplicity of the three felon in possession of a firearm counts, 2) the arguably cumulative testimony from five prosecution witnesses, 3) the alleged ineffective assistance of trial counsel on various grounds, 4) the trial court's failure to dismiss the charge of maintaining a drug house following petitioner's acquittal on the drug dealing charge, 5) the appropriateness of discretionary reversal in the interests of justice because the challenges, considered collectively, allegedly demonstrate that the real controversy was not fully tried, and 6) appellate counsel's alleged mischaracterization of the record and general ineffectiveness. (Answer, Exh. D at 2-3).
The Wisconsin Court of Appeals conducted an independent review of the six issues raised by appellate counsel in the "no merit" report. The appellate court also considered the six additional issues raised in the petitioner's responses. The court found that the issues raised by appellate counsel and the issues raised by the petitioner all lacked arguable merit. The court of appeals affirmed the petitioner's conviction on May 20, 2002.
The petitioner filed a petition for review and a supplement to the petition for review with the Wisconsin Supreme Court. On September 26, 2002, the Wisconsin Supreme Court denied the petition for review and the supplemental petition. (Answer Exh. G).
APPLICABLE LAW
The habeas corpus statute was amended by the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub.L. No. 104-132, 100 Stat. 1214 (1996), which provides in pertinent part:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d). Williams v. Taylor, 529 U.S. 362, 412-13 (2000). This provision entitles federal courts acting within their jurisdiction to interpret the law independently, but requires them to refrain from "fine tuning" state court interpretations. Lindh v. Murphy, 96 F.3d 856, 870-877 (7th Cir. 1996), rev'd on other grounds, 521 U.S. 320 (1997). "Thus, although this court reviews the state court's legal conclusions and mixed questions of law and fact de novo, that review is `tempered by AEDPA's deferential constraints.'" Hereford v. McCaughtry, 101 F. Supp. 2d 742, 746 (E.D. Wis. 2000) (quoting Sanchez v. Gilmore, 189 F.3d 619, 623 [7th Cir. 1999]).
A state court's decision is "contrary to . . . clearly established Federal law as established by the United States Supreme Court" if it is "substantially different from relevant [Supreme Court] precedent." Washington v. Smith, 219 F.3d 620, 628 (7th Cir. 2000) (quoting Williams, 529 U.S. at 405). The court of appeals for this circuit recognized the narrow application of the "contrary to" clause:
under the "contrary to" clause of § 2254(d)(1), [a court] could grant a writ of habeas corpus . . . where the state court applied a rule that contradicts the governing law as expounded in Supreme Court cases or where the state court confronts facts materially indistinguishable from a Supreme Court case and nevertheless arrives at a different result.Washington, 219 F.3d at 628. The court went on to explain that the "unreasonable application of" clause was broader and "allows a federal habeas court to grant habeas relief whenever the state court `unreasonably applied [a clearly established] principle to the facts of the prisoner's case.'" Id. (quoting Williams, 529 U.S. at 413).
To be unreasonable, a state court ruling must be more than simply "erroneous" and perhaps more than "clearly erroneous."Hennon v. Cooper, 109 F.3d 330, 334 (7th Cir. 1997). Under the "unreasonableness" standard, a state court's decision will stand "if it is one of several equally plausible outcomes." Hall v. Washington, 106 F.3d 742, 748-49 (7th Cir. 1997). In Morgan v. Krenke, the court explained that:
[u]nreasonableness is judged by an objective standard and under the "unreasonable application" clause, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." 232 F.3d 562, 565-66 (7th Cir. 2000) (quoting Williams, 529 U.S. at 411). Therefore, before a court may issue a writ of habeas corpus, it must determine that the state court decision was both incorrect and unreasonable. Davis v. Litscher, 290 F.3d 943, 946 (7th Cir. 2002); Washington, 219 F.3d at 628.
ANALYSIS
In its decision the Wisconsin Court of Appeals set forth the following facts about the crimes:
The jury convicted McClinton of maintaining a drug house, and of multiple counts of being a felon in possession of a firearm. That same jury, however, acquitted him of selling cocaine to an undercover officer. McClinton testified that he managed apartment buildings for Ken Hezler. He contends that the seemingly incriminating evidence found by police, such as walkie-talkies, a pager, a cellular telephone, binoculars, small appliances, jewelry, large amounts of cash, loaded weapons and ammunition, were not his, but belonged to other residents in the building he managed, and that the guns were planted by police. McClinton testified that he operated a pawnshop-type of business in his apartment which also accounted for much of this seemingly incriminating evidence.
(Answer, Exh. D at 3-4, footnote omitted).
Double Jeopardy Claim
The petitioner asserts that his three convictions for being a felon in possession of a firearm were obtained in violation of the protections against double jeopardy. The petitioner argues that the three convictions arose "from one simultaneous possession in defendant's bedroom." (Petition for a Writ of Habeas Corpus by a Person in State Custody [Petition], ¶ 22 A). The petitioner references Blockburger v. United States, 284 U.S. 299 (1932), in support of his position.
The petitioner cites a number of cases in support of his double jeopardy claim. These cases all involve federal prosecutions of the federal felon in possession of a firearm statute, not the state statute.
The respondent contends that the prosecution and conviction on three counts of felon in possession of a firearm did not violate the petitioner's constitutional protection against double jeopardy. The respondent notes that although the Wisconsin Court of Appeals did not engage in an extended discussion on this claim and did not cite controlling legal authority, the court pointed out that the charges involved "three different firearms" and rejected the petitioner's contention that the firearms charges were multiplicitous. (Answer, Exh. D at 4). The respondent states that under the test set forth in Blockburger v. United States, 284 U.S. 299 (1932), if the offenses are different in law or fact, a presumption arises that the legislature intended to permit cumulative punishments. The respondent asserts that the three firearms charges filed against the petitioner were identical in law, but not in fact because, as the court of appeals concluded, the charges involved possession of "three different firearms." Therefore, the respondent states that the charges were not mutiplicitous and that the petitioner was not subjected to double jeopardy.
The double jeopardy clause provides that no "person [shall] be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const., amend. V. This constitutional provision contains three separate guarantees: 1) once acquitted of a charge, a person shall not be prosecuted again for the same offense; 2) once convicted of a crime, a person shall not be prosecuted again for that same crime; and 3) one shall not be punished twice for the same offense. United States v. Hatchett, 245 F.3d 625, 630 (7th Cir. 2001) (citing Illinois v. Vitale, 447 U.S. 410, 415). It is the third guarantee of the clause that petitioner invokes in claiming that he received multiple punishments for what he argues is one offense.
In Blockburger, 284 U.S. at 304, the court held that where the same act or transaction constitutes a violation of two distinct statutes, the test to be applied to determine whether there are two offenses or one is whether each provision requires proof of a fact which the other does not. 284 U.S. at 304. The petitioner's claim, however, is not that he was charged with violating two distinct statutory provisions describing the same offense. Rather, the petitioner argues that he was wrongly charged with three separate violations of the same statute, namely, being a felon in possession of a firearm.
In cases involving the same rather than distinct statutory provisions, the court must ascertain legislative intent through the language of the statute, the legislative history, and the interpretation of the statute by the state's highest court.United States v. Song, 934 F.2d 105, 108 (7th Cir. 1991); see also, Westbury v. Krenke, 112 F. Supp. 2d 803, 812 (E.D. Wis. 2000). In examining legislative intent, this court is bound by a state court's interpretation of its own state laws. See, O'Brien v. Skinner, 414 U.S. 524 (1974).
The Wisconsin Supreme Court examined the legislative history of the statute at issue and determined that the legislative purpose behind the statute is the protection of public safety. State v. Thiel, 188 Wis. 2d 695, 706-07, 524 N.W.2d 641 (Wis. 1994). The court further determined that the Wisconsin state legislature designed this statute to control the conduct of felons, aiming to prevent them from possessing firearms. State v. Black, 242 Wis. 2d 126, 143, 624 N.W.2d 363 (Wis. 2001). This is "because the legislature has determined that felons are more likely to misuse firearms."State v. Coleman, 206 Wis. 2d 199, 210, 556 N.W.2d 701 (Wis. 1996).
In State v. Trawitzki, 244 Wis. 2d 523, 628 N.W.2d 801 (2001), the Wisconsin Supreme Court examined the issue of multiple charges of a single statute. The defendant inTrawitzki was found guilty of ten theft charges for his role in the taking of ten firearms from a home on the same day and five charges of concealing stolen property for his role in the subsequent hiding of five of the firearms. The court applied a two-part multiplicity test, citing Blockberger, 284 U.S. at 299. Trawitzki, 244 Wis. 2d at 538, n. 3.
The court applied the first part of the multiplicity test to the firearm theft and concealing stolen firearms charges against Mr. Trawitzki to determine whether they were identical in law and fact. The court concluded that although the charges were identical in law, because they arose under the same criminal statute, they were not identical in fact. Trawitzki, 244 Wis. 2d at 541. To determine that charges are not identical in fact, the facts must be separated in time or of a significantly different nature. Id. at 541 (citing State v. Anderson, 219 Wis.2d 739, 749, 580 N.W.2d 329 [Wis. 1998]). The court further stated that in order for the charges "[t]o be of a significantly different nature, each charged offense must require proof of an additional fact that the other charges do not." Id.
The court determined that each theft and concealment charge against Mr. Trawitzki required proof of an additional fact that the other charges did not, specifically, the identity of the individual firearm. Therefore, with each separate statutory charge, the prosecution was required to prove the identity of the particular firearm set forth in that count.
In the instant case, the court of appeals rejected the petitioner's double jeopardy claim because the charges involved three different firearms. Thus, the charges the petitioner was convicted of in this case were identical in law, but not in fact. Each count required proof of a different fact, namely the identity of the specific firearm the petitioner possessed. Accordingly, the state court's decision is not contrary to clearly established federal law as determined by the United States Supreme Court. The petitioner's contention that his three convictions were obtained in violation of the double jeopardy clause does not entitle him to federal habeas relief.
Ineffective Assistance of Counsel Claim
With respect to the petitioner's ineffective assistance of counsel claim the petitioner contends that:
Counsel failed to show and impeach testimony of officers from police reports and trial testimony. Failed to timely insert witnesses that defendant asserted. Failed to properly object to multiplicous [sic] charges. Failure to object to (6) guns introduced as evidence which had no bearing to meritorious value, and if any value it, was substantially outweighed by prejudiceness [sic].
(Petition ¶ 22B).
The respondent asserts that the Wisconsin Court of Appeals' properly applied the standards of Strickland v. Washington, 466 U.S. 668 (1984), in concluding that the petitioner's ineffective assistance of counsel claims were without merit. The respondent contends that the court of appeals correctly appliedStrickland's two-prong analysis regarding deficient performance and prejudice and correctly determined that the petitioner's claims were without merit.
Ineffective assistance of counsel claims are analyzed underStrickland which is "clearly established Federal law, as determined by the Supreme Court of the United States." See Washington, 219 F.3d at 627-28. To prevail on a claim of ineffective assistance of counsel under Strickland, a petitioner "must show that counsel's performance was deficient . . . [and] . . . the deficient performance prejudiced the defense." 466 U.S. at 687. "Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Id.
The first component requires a petitioner to show that his trial counsel "made errors so serious that counsel was not functioning as `counsel' guaranteed the defendant by the Sixth Amendment." Id. In other words, the petitioner "must show that counsel's representation fell below an objective standard of reasonableness." Id. To establish prejudice under the second component, a petitioner "must show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. If the court determines that the petitioner has failed to satisfy either component of theStrickland test, it need not address the other. See Chichakly v. United States, 926 F.2d 624, 630-31 (7th Cir. 1991).
A court's review of trial counsel's performance is "highly deferential." United States v. Meyer, 234 F.3d 319, 324 (7th Cir. 2000). "Because of the difficulties inherent in making [an evaluation of effective assistance of counsel], a court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged actions `might be considered sound trial strategy.'" Strickland, 466 U.S. at 689. "Under Strickland, lawyers are granted wide latitude to make reasonable strategic decisions." Washington v. Smith, 219 F.3d 620, 629-30 (7th Cir. 2000).
As noted, the petitioner asserts several grounds for his ineffective assistance of counsel claim. In analyzing petitioner's that claim regarding counsel's failure to impeach the testimony of the police officers, the court of appeals stated that the detective in charge of the investigation testified that three loaded firearms were found in the petitioner's bedroom. (Answer, Exh. D at 6). The court of appeals then set forth the defendant's contentions, noting that the defendant testified that he had no guns and that the police officers brought them in and planted them. (Answer, Exh. D at 6). The appellate court further noted a contradiction in the defendant's testimony regarding the number of guns that were planted. (Answer, Exh. D at 6). In the court of appeal's opinion, the jury was left with the task of weighing these discrepancies based upon their assessment of credibility. The appellate court stated that "[t]he jury, as demonstrated by its split verdict, presumably considered the contradictions in the police officers' testimony". The court concluded that counsel's decision was a matter of "trial strategy" and that the petitioner's claim lacked arguable merit. (Answer, Exh. D at 7).
The petitioner has not provided the court with information as to what specific testimony of the police officers he felt should be impeached, what that impeachment would have shown, or how that testimony would have affected the outcome of this case. He has not presented facts for this court to conclude that his counsel's representation "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687.
The petitioner also asserts that his counsel failed to call certain witnesses to testify. Complaints of uncalled witnesses are not favored in federal habeas review. United States ex rel. Cross v. DeRobertis, 811 F.2d 1008, 1016 (7th Cir. 1987) (citing, Murray v. Maggio, 736 F.2d 279, 282 [5th Cir. 1984]). In alleging the ineffectiveness of counsel, a petitioner's obligation to show prejudice cannot be met without a comprehensive showing as to what would have been produced and how it would have effected the outcome of the case. DeRobertis, 811 F.2d at 1016. It is especially important that the court have the opportunity to assess comprehensively the proposed testimony of the missing witnesses. Id.
As noted by the court of appeals, other than the testimony of Mr. Hezler, the petitioner has not provided the names of the defense witnesses, the content of their presumed testimony, or any indication as to how that testimony would have affected the outcome of the case. Moreover, the petitioner has failed to demonstrate how calling the witnesses he wanted called would have impeached the testimony of prosecution witnesses on the essential elements of the offense and would have impacted the results of his trial. The court of appeals pointed out that the elements of the offense, felon in possession of a firearm, are simple and straight forward. (Answer, Exh. D at 5).
In reaching its conclusion that the petitioner was not prejudiced by the failure to call certain witnesses, the court of appeals specifically examined trial counsel's decision not to call Ken Hezler as a defense witness. The court stated that some of Mr. Hezler's testimony actually may have been detrimental to the defendant's case. (Answer, Exh. D at 6-7). Upon review, the court determined that the decision not to call Mr. Hezler as a witness may have been sound trial strategy. In addition, the court pointed out that the petitioner testified to much of what he claims Mr. Hezler would have testified to. The appellate court concluded that the petitioner failed to show that he was prejudiced by trial counsel's failure to call Mr. Hezler as a witness.
The petitioner has failed to present facts to establish that the state court's determination that he was not prejudiced by trial counsel's handling of his case is contrary to, or an unreasonable application of, clearly established Supreme Court precedent. Therefore, he has not shown a basis for granting his petition for a writ of habeas corpus.
The court of appeals recognized and fairly applied theStrickland standard in analyzing and rejecting the petitioner's ineffective assistance of counsel claim. The court concluded that there are "reasonable strategic explanations" for trial counsel's failures to object to leading testimony, cross examine the police officers, subpoena the informant or present certain defense witnesses who were already in the courtroom. (Answer, Exh. D at 6).
The petitioner has failed to show that the court of appeal's decision was contrary to, or involved an unreasonable application of clearly-established federal law as determined by the Supreme Court. He has not established that his trial counsel "made errors so serious that counsel was not functioning as `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. Accordingly, the petitioner's ineffective assistance of trial counsel claim does not provide a basis for granting the petitioner's writ of habeas corpus.
Due Process As to Witness Testimony and Abuse of Trial Court Discretion Claims
The petitioner contends that he was denied due process for being charged, convicted and sentenced on three counts of being a felon in possession of a firearm. The petitioner states that this claim is also based upon the fact that the trial court accepted a prosecution witness while simultaneously disallowing a defense witness. (Petition, ¶ 22C). The petitioner further claims that the trial judge abused her discretion when she ruled that the introduction of two defense witnesses, who were under subpoena, was untimely, although she allowed the state to introduce five new witnesses. (Petition, ¶ 22B). To the extent that the petitioner asserts that he was deprived of due process by his prosecution and conviction on three counts of possession of a firearm by a convicted felon, such claim was also raised as a double jeopardy claim and has been addressed. He has failed to provide any additional assertions that would support his claim of due process deprivation.
The petitioner also challenges various state court evidentiary rulings. A writ of habeas corpus may be extended to a prisoner only if he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2241(c)(3). Federal habeas corpus relief does not lie for errors of state law. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990).
A state court evidentiary ruling can serve as grounds for a writ of habeas corpus in only rare cases where the ruling violates the defendant's right to a fair trial. Lilly v. Gilmore, 988 F.2d 783, 789 (7th Cir. 1993). Therefore, violations of state law are cognizable only if they resulted in fundamental unfairness and consequently violated the petitioner's Fourteenth Amendment right to due process. See Estelle v. McGuire, 502 U.S. 62, 65, 67-68 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States."). Therefore, state evidentiary determinations, by themselves, raise no federal constitutional questions that are cognizable in a habeas corpus proceeding.
The court of appeals addressed the petitioner's evidentiary claims in the context of its review of his claim of ineffective assistance of counsel since the petitioner has asserted these claims as evidence of his counsel's ineffectiveness. The appeals court analyzed the petitioner's various evidentiary claims and fairly and properly rejected them.
The petitioner has failed to establish that the effect of any of the trial court's evidentiary rulings resulted in fundamental unfairness, thereby violating his right to due process. See Estelle, 502 U.S. at 65. Furthermore, he has not shown that the state court's rejection of his evidentiary challenges was contrary to or involved an unreasonable application of clearly established federal law as determined by the United States Supreme Court. See Williams, 529 U.S. 412-13. Accordingly, the petitioner's claims of denial of due process based on his prosecution and conviction on three counts of being a felon in possession of a firearm and his evidentiary claims do not warrant the granting of federal habeas corpus relief.
In sum, the petitioner has failed to establish a basis for this court to grant his petition for a writ of habeas corpus. Therefore, the petition for a writ of habeas corpus will be denied.
ORDER
NOW, THEREFORE, IT IS ORDERED that the petitioner's petition for a writ of habeas corpus be and hereby is denied. IT IS FURTHER ORDERED that this action be and hereby is dismissed. IT IS ALSO ORDERED that the Clerk of Court enter judgment accordingly.