United States District Court, E.D. Wisconsin
WILLIAM J. WARD, Petitioner,
MICHAEL BAENEN, Warden, Green Bay Correctional Institution Respondent.
DECISION AND ORDER
HON. RUDOLPH T. RANDA, U.S. DISTRICT JUDGE.
This action is before the Court on the petition filed by William J. Ward seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent Michael Baenen asserts that Ward’s claims should be denied because they are procedurally defaulted, and the petition should be dismissed with prejudice.
Late in the evening of July 2, 2006, a residence was robbed by four males, two of whom were armed. The two armed men ransacked the residence looking for drugs and money. One of the armed men pointed a silver handgun at the victim, Alexandria Micke, and a two-year-old child in an attempt to persuade Micke to surrender the money and drugs. The four robbers stole $100 and one-half pound of marijuana.
On July 5, officers received a dispatch indicating that a July 4 drive-by shooting victim had called stating that the suspect vehicle had just driven by her home. A traffic stop conducted by Detective Thomas Janda revealed that Ward was the driver of that vehicle, and a silver handgun was recovered from under the seat. When Ward and his property were searched, no marijuana was found. Ward was taken into custody and later charged with the robbery.
At a March 2007 trial, Micke testified that one of the armed males who entered the house pointed a silver handgun at her head and repeatedly stated “you know where it is.” Micke also testified that the male with the silver handgun pointed it at her two-year-old sister and threatened to kill her if nothing was found. The other armed male had a large butcher knife.
At trial, Janda testified regarding his July 5 traffic stop of Ward, and linked Ward and the silver Pontiac Sunbird he was driving with the drive-by shooting. Defense counsel moved for a mistrial. The court denied the motion, but struck Janda’s testimony and strongly instructed the jury to disregard it. Janda’s testimony resumed, and he stated that he was involved in a traffic stop of Ward on July 5 and saw a silver Ruger handgun partially concealed under the driver’s seat. He also identified the handgun in Ward’s trial as being the same type of weapon or the same handgun. The next witness, Detective Cary Meyer testified that Ward stated he owned the gun found in the silver Sunbird.
One of Ward’s accomplices, Dieshon Manke-Moore testified that after a party Ward drove him and two other individuals to Micke’s house in a two-door silver car, and dropped off Manke-Moore and one other passenger. A little while later, Ward (Manke-Moore called Ward by his nickname, Frosty) and Rob Wichman entered the house. Manke-Moore testified that Ward took out a silver handgun and pointed it at Manke-Moore, Micke, and another individual.
Ward was convicted of the armed robbery and intentionally pointing a firearm at a person, both as repeaters. The circuit court imposed a sentence of fourteen years’ initial confinement and nine years’ extended supervision on the armed robbery count, and one year of initial incarceration and one year of extended supervision on the firearm count, to be served concurrently.
On direct appeal, Ward claimed that the circuit court erroneously exercised its discretion by denying his motion for a mistrial. The mistrial motion was based on Janda’s testimony linking the silver vehicle operated by Ward and the silver handgun with the July 4 drive-by shooting. The objection was premised on prejudice due to the testimony connecting Ward with the drive-by shooting. The court of appeals rejected the argument, holding that the brief reference to the drive-by shooting did not reasonably contribute to the convictions.
Ward filed a pro se post-conviction motion pursuant to Wis.Stat. § 974.06. The trial judge conducted a hearing on the motion, at which the parties presented arguments. The court denied Ward’s motion and stated its reasons for doing so. (Ans., Ex. at 728-43, ECF No. 9-3.)
In a pro se appeal of that denial, Ward asserted that his trial attorney and his post-conviction and appellate attorneys were ineffective. The court of appeals upheld the determination that the claim was procedurally barred, and also held that it was meritless. The court noted that Ward argued his attorneys were ineffective because they failed to cite three federal cases in support of their contention that the reference to the drive-by shooting was prejudicial. The court held that because Ward’s claim regarding the drive-by shooting had already been rejected on his initial appeal, it could not serve as the basis for a subsequent post-conviction motion, no matter how artfully phrased, citing State v. Witkowski, 163 Wis.2d 985, 473 N.W.2d 512, 514 (Wis. Ct. App. 1991). The court also noted that the federal cases would not have altered its decision because, unlike the three federal cases, there was “overwhelming evidence” of Ward’s guilt.
Ward also argued that trial counsel was ineffective because he failed to mention during closing argument that the stolen drugs were not found on Ward’s person or property when he was arrested three days after the robbery. The appeals court held that such portion of Ward’s claim was procedurally barred under State v. Escalona-Naranjo, 185 Wis.2d 168, 517 N.W.2d 157 (Wis. 1994) because Ward had not provided sufficient reason for his failure to raise the issue in “his initial post-conviction motion and appeal.” Ward, 815 N.W.2d 406, at *2. The court also held that trial counsel’s failure to mention the fact that police failed to find the marijuana had little probative value because Ward had three days to dispose of it.
Section 2254 Petition
Ward raises three grounds for relief in this habeas petition: (1) his Sixth and Fourteenth Amendment rights to an impartial jury were violated because the jury heard Janda’s testimony linking Ward with the drive-by shooting, and the judge told the jury to disregard that testimony without conducting any analysis to determine how the testimony would affect the jury; (2) trial and appellate counsel were ineffective for failing to raise the issue of how Janda’s testimony affected Ward’s Sixth and Fourteenth Amendment rights; and (3) trial counsel was ineffective because he failed to argue that no drugs were found on Ward’s person or property when he was arrested.
Baenen maintains that ground one was not exhausted because Ward did not present it through one complete round of state court review; instead Ward presented different claims related to Janda’s reference to the drive-by shooting, and thus procedurally defaulted that ground. Baenen states that although grounds two and three were exhausted, those two claims were procedurally defaulted and federal review is barred under Miranda v. Leibach, 394 F.3d 984, 991-92 (7th Cir. 2005).
Ward disagrees as to ground one, relying on Baldwin v. Reese, 541 U.S. 27 (2004), and stating that Baenen has failed to acknowledge a sub argument presented at pages 184 and 323 of the exhibits to the answer, and that the Wisconsin Court of Appeals addressed the issue at pages 309-10 of the answer. With respect to grounds two and three, Ward contends that the ...