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Jackson v. Boughton

United States District Court, E.D. Wisconsin

March 7, 2016

GARY BOUGHTON, Warden, Wisconsin Secure Program Facility, Respondent.


LYNN ADELMAN District Judge

Following a jury trial, Antonio Jackson was convicted of one count of attempted first-degree intentional homicide. He was sentenced to twenty years of initial confinement and five years of extended supervision. In this decision and order, I address his petition for a writ of habeas corpus under 28 U.S.C. § 2254.


In 2010, D’Chario Oates was shot twice, once in the knee and once near his elbow. The shooting happened at a park in Racine, Wisconsin. No one other than Oates witnessed the shooting. Just before the shooting, Oates saw a gray or silver Pontiac car drive around the block a couple of times and then stop. The driver got out of the car and called Oates over. As Oates approached the car, the driver pulled out a revolver and fired two or three shots, hitting Oates in the knee and the elbow. The shooter fled the scene. Eventually, Antonio Jackson was charged with the crime. Following a jury trial, he was convicted.

In the present case, Jackson contends that he is entitled to habeas relief because his trial counsel was ineffective. Jackson contends that his counsel made three prejudicial errors during the trial: (1) failing to object to Oates’ testimony that some of his friends told him that his description of the shooter sounded like Jackson; (2) failing to object to the admission of an .40 caliber gun magazine that the police found during a search of Jackson’s residence; and (3) failing to object to the prosecutor’s mentioning an Arkansas police report that supposedly described Jackson as hiding in his bedroom when the police came to arrest him.

Jackson originally raised his ineffective-assistance claim in a postconviction motion that he filed in the state trial court. The trial court held a hearing on the motion, at which Jackson’s trial counsel testified. See State v. Machner, 92 Wis.2d 797 (1979). Following the hearing, the trial court denied Jackson’s motion. Jackson then proceeded with his direct appeal, in which he raised the same ineffective-assistance claim. The Wisconsin Court of Appeals affirmed Jackson’s conviction, and the Wisconsin Supreme Court denied review.


To establish a claim for ineffective assistance of trial counsel, a petitioner must show that his lawyer performed deficiently and that he suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687-94 (1984). To establish deficient performance, a petitioner must demonstrate that his lawyer’s representation fell below an objective standard of reasonableness as measured by prevailing professional norms. Id. at 687. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Id. To establish prejudice, a petitioner must show that there is a reasonable probability that but for his lawyer’s deficient performance, the result of the proceeding would have been different. Id. at 694.

The Wisconsin Court of Appeals adjudicated Jackson’s ineffective-assistance claim on the merits, and therefore I may grant relief only if the adjudication 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. See 28 U.S.C. § 2254(d). However, the Wisconsin Court of Appeals did not address both prongs of the Strickland standard (i.e., deficient performance and prejudice) for each of the alleged errors. Rather, it addressed only one prong of the standard for each alleged error. For the claim involving Oates’ testimony about what his friends had told him, the court found that counsel’s failure to object was not deficient performance, and it did not address whether the failure to object was prejudicial. For the claims involving the gun magazine and the Arkansas police report, the court did not address whether counsel’s failures to object constituted deficient performance; instead, the court found that the failures did not result in prejudice.

When a state court decides an ineffective-assistance claim against the defendant on only one prong of the Strickland analysis, the undecided prong is not subject to the standard of review in 28 U.S.C. § 2254(d). Rompilla v. Beard, 545 U.S. 374, 390 (2005). Instead, that part of the claim is reviewed de novo. Id. Thus, my review of the state court decision could vary depending on the prong of the Strickland analysis at issue. However, as discussed below, I conclude that the Wisconsin Court of Appeals did not unreasonably apply Strickland in deciding Jackson’s ineffective-assistance claim on the prongs that it addressed. For this reason, I will not discuss the prongs that are subject to de novo review.

A. Evidence of Conversations with Friends

After he was shot, Oates was taken to the hospital. Just before he went into surgery, the police interviewed him. During the interview, Oates told the police that he did not recognize the shooter. However, he described the shooter as a dark-skinned black male between the ages of twenty-one and twenty-four, approximately 5’3’” to 5’5” in height, and weighing around 135 to 145 pounds. Oates stated that the shooter had gold teeth and was wearing a black hooded sweatshirt and black saggy jeans with shorts underneath. He described the shooter’s car as a model year 2000 or 2002 silver Pontiac Grand Prix.

Later, the police interviewed Oates a second time. Oates reiterated that he did not know who shot him. In this interview, Oates described the shooter’s clothing as he had in the first interview, and he also reiterated that the shooter had gold teeth. However, Oates changed his description of the shooter’s height and weight slightly. He said that the shooter’s height was between 5’5” and 5’7” and that his weight was between 140 and 160 pounds. He also said that the shooter drove a Pontiac Grand Am, when in the first interview he had said that the shooter drove a Pontiac Grand Prix.

The day after the shooting, Oates described the shooter and the shooter’s car to some of his friends. At trial, Oates testified that “everybody” he talked to said that Antonio Jackson and his car matched the descriptions. Jackson’s trial counsel did not object to this testimony. Oates further testified that, after talking to his friends, he contacted the police and told an officer that he believed the name of the shooter was ...

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