United States District Court, E.D. Wisconsin
ORDER SCREENING PETITION (DKT. NO. 1) AND REQUIRING
PAMELA PEPPER United States District Judge
March 28, 2016, Samuel Moreland, representing himself, filed
a petition pursuant to 28 U.S.C. §2254, asserting that
his state conviction and sentence violated the Constitution.
Dkt. No. 1. He paid the $5.00 at the time he filed the
petition. Id. The court now will screen the
January 7, 2009, the State of Wisconsin filed a complaint
against the petitioner in Milwaukee County Circuit Court.
See State v. Moreland, No. 2009CF000050,
available at https://wcca.wicourts.gov. The
complaint charged the defendant with first-degree reckless
homicide by delivering drugs. Wis.Stat. §940.02(2)(a). A
jury found the defendant guilty, and on July 19, 2010, the
state court sentenced the petitioner to the maximum term of
ten years of incarceration, followed by ten years of extended
supervision. Id., MKE Cnty. Dkt. No. 70.
22, 2010, the petitioner filed two notices of intent to
pursue post-conviction relief. MKE Cnty. Dkt. Nos. 65, 66. On
March 28, 2011, he filed a motion for a new trial. MKE Cnty.
Dkt. No. 46. On July 11, 2011, the trial court denied the
motion, MKE Cnty. Dkt. No. 37; Moreland v. Meisner,
16-cv-379 (E.D. Wis.) at Dkt. No. 1-1, and on July 22, 2011,
the petitioner appealed to the Wisconsin Court of Appeals,
MKE Cnty. Dkt. No. 34. On November 1, 2012, the court of
appeals affirmed the state court’s decision. MKE Cnty.
Dkt. No. 28; Moreland v. Meisner, 16-cv-379 at Dkt.
No. 1-2. On December 3, 2012, the court of appeals denied the
petitioner’s motion for reconsideration and denied his
motion to appoint counsel. MKE Cnty. Dkt. No. 27. On May 13,
2013, the Wisconsin Supreme Court denied the petition for
review. MKE Cnty. Dkt. No. 24; Moreland v. Meisner,
16-cv-379 at Dkt. No. 1-3.
September 23, 2013, the petitioner filed in Milwaukee County
Circuit Court a pro se motion for post-conviction
discovery. MKE Cnty. Dkt. No. 22. On September 26, 2013, the
circuit court denied that motion. MKE Cnty. Dkt. No. 20. On
October 10, 2013, the petitioner filed a motion for
reconsideration, MKE Cnty. Dkt. No. 19, and on October 11,
2013, the court denied that motion, MKE Cnty. Dkt. No. 17.
30, 2014, the petitioner filed another motion for
post-conviction relief in Milwaukee County, this time
representing himself. MKE Cnty. Dkt. No. 16. On August 5,
2014, the circuit court denied the motion, MKE Cnty. Dkt. No.
14, and on August 15, 2014, the petitioner filed a notice of
appeal, MKE Cnty. Dkt. No. 13. On October 21, 2014, the
petitioner filed an emergency motion for appointment of
counsel, MKE Cnty. Dkt. No. 9, which the circuit court denied
on October 24, 2014, MKE Cnty. Dkt. No. 7. On January 23,
2015, the Wisconsin Court of Appeals denied the
petitioner’s petition for supervisory writ ex
parte. MKE Cnty. Dkt. No. 6. On December 22, 2015, the
court of appeals denied the petitioner’s appeal of the
circuit court’s August 5, 2014 denial of
post-conviction relief. MKE Cnty. Dkt. No. 4. On January 14,
2016, the petitioner sought review with the Wisconsin Supreme
Court, MKE Cnty. Dkt. No. 3, and on March 10, 2016, that
court denied the petition for review, MKE Cnty. Dkt. No. 2.
CLAIMS RAISED IN THE PETITION
Wisconsin District I Court of Appeals recited the following
factual background for the petitioner’s claims:
In January 2009, the State charged Moreland with first-degree
reckless homicide in the death of Niki Domineck. According to
the criminal complaint, police and paramedics responded to a
call from Moreland’s apartment reporting that Domineck
was not breathing. Dominick was later pronounced dead at a
hospital. A toxicology analysis performed by Dr. Susan Gock,
Technical Director of the Milwaukee County Medical Examiner
Toxicology Unit, revealed the cause of death was an overdose
of the pain medication Fentanyl.
Moreland gave the police the following account of the events
leading up to Domineck’s death. Moreland had discovered
that Domineck had taken one of his prescription pain
medication patches, which contained the medication Fentanyl,
and placed it on her leg. Moreland removed the patch from
Domineck’s leg and told her it was wrong for her to use
the patch. Moreland and Domineck then went to sleep. The next
day Moreland discovered that Domineck was cold and
non-responsive, and Moreland called 9-1-1.
Two individuals, Andrew Goldberg and Latoya Sanders, later
told police that Moreland informed them after
Domineck’s death that he had given Domineck the
Fentanyl patch. Goldberg stated that Moreland said that
Moreland and Domineck cut the patch open so that they could
orally ingest the gel inside the patch.
The Milwaukee County Medical Examiner analyst referenced
above who had performed the toxicology analysis of
Domineck’s blood, Dr. Gock, was unavailable to testify
at trial due to serious health issues. The State offered
testimony by Dr. Gock’s supervisor, Dr. Steven Wong, as
to his independent opinion based on the results of the
testing done by Dr. Gock. Moreland moved to exclude Dr.
Wong’s testimony, contending that allowing Dr. Wong to
testify as to his opinion based in part on Dr. Gock’s
analysis violated Moreland’s Sixth Amendment right to
confrontation. The circuit court denied Moreland’s
motion to exclude Dr. Wong’s testimony. Moreland then
moved to adjourn the trial to have the evidence retested by
the state crime laboratory. The court denied the motion.
Dr. Wong testified at trial that he analyzed the data that
was collected in connection with the case number assigned to
Domineck’s case, and determined that Fentanyl was
present in her blood at a potentially fatal concentration of
twenty-three nanograms per milliliter.
A pharmacist testified for the State that the packet of
Fentanyl patches retrieved from Moreland’s apartment
were for Fentanyl patches that contain a gel reservoir of the
medicine. He testified that it would be impossible to obtain
a blood level of Fentanyl of twenty-three nanograms per
milliliter by wearing one patch, but that it would be
possible to reach that level by wearing several patches for a
few days or by ingesting the patch. However, the parties
later reached a stipulation that the type of patch retrieved
from Moreland’s apartment was an adhesive layer style
patch that did not contain the medicine in gel form.
The State also presented testimony by Goldberg and Sanders.
Both testified that Moreland informed them he caused
Domineck’s death by giving her the Fentanyl patch.
Defense counsel cross-examined Dr. Wong as to his involvement
in the testing and argued in closing that the State had
failed to offer sufficient evidence that Domineck’s
blood contained a fatal level of Fentanyl. Defense counsel
also argued that Goldberg and Sanders were not credible,
including Goldberg’s story that Moreland reported
cutting open a patch to reach the gel inside was false
because Moreland’s type of patch did not contain any
Defense counsel argued that, as opposed to the State’s
version, Moreland had provided police with a credible version
of the events leading to Domineck’s death.
Moreland was convicted on a jury verdict, and filed a
postconviction motion for a new trial. Moreland claimed
ineffective assistance of counsel and sought a new trial in
the interest of justice. The court denied the motion without
an evidentiary hearing. Moreland appeals.
Moreland v. Meisner, Dkt. No. 1-2 at 2-4.
petition for habeas relief, the petitioner asserts
six grounds for relief. Dkt. No. 1 at 6-10. In ground one, he
asserts that he “was denied the right to confrontation
of a witness contrary to the 6th amend [sic] of the U.S.
Constitution.” Dkt. No. 1 at 6. The claim relates to
the fact that Dr. Gock did not testify (she was unavailable
due to health issues), and that Dr. Wong “only ...