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Moreland v. Meisner

United States District Court, E.D. Wisconsin

July 18, 2016

SAMUEL MORELAND, Petitioner,
v.
MICHAEL MEISNER, Respondent.

          ORDER SCREENING PETITION (DKT. NO. 1) AND REQUIRING RESPONSE

          HON. PAMELA PEPPER United States District Judge

         I. INTRODUCTION

         On 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 petition.

         II. PROCEDURAL HISTORY

         On 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.

         On July 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.

         On 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.

         On July 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.

         III. CLAIMS RAISED IN THE PETITION

         The 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 gel.
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.

         In his 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 ...


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