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Schroder v. Foster

United States District Court, E.D. Wisconsin

September 30, 2016

BRIAN FOSTER, [1] Respondent.



         Thomas Schroder petitions under 28 U.S.C. § 2254 for a writ of habeas corpus, challenging his convictions for second-degree sexual assault of a child, which stem from two consolidated cases. Schroder was convicted in Milwaukee County Circuit Court and sentenced to a total of eight years of confinement and twelve years of extended supervision.[2]

         Schroder's grounds for relief are: (1) an ineffective-assistance-of-counsel claim regarding various errors by two different attorneys; (2) a claim that Schroder's no-contest plea was entered unknowingly and involuntarily due to his failure to understand the elements that needed to be proved and not being informed of possible civil commitment under Wis. Stats. ch. 980; (3) a claim that his plea withdrawal request was improperly denied; (4) a claim that the state violated the plea agreement; (5) a claim that he was improperly assessed a DNA surcharge; (6) a claim that counsel failed to object to the presentence investigation report's recommendation upon which the circuit placed too much reliance; and (7) a claim that Schroder's due process right was violated because certain evidence was withheld by the defense.

         Schroder exhausted these issues in his direct appeal in the state courts. He filed a motion for postconviction relief under Wis.Stat. § 974.02. The motion was denied on August 19, 2010, and the Wisconsin Court of Appeals affirmed in its decision on December 28, 2011. Schroder's request for review was denied by the Supreme Court of Wisconsin. Respondent agrees that Schroder has exhausted his available state court remedies on the remaining grounds for relief and that his petition was timely filed. (Doc. 11 at 2, 4; Doc. 29 at 5.)

         After Magistrate Judge Goodstein issued his screening order in this case, [3] Schroder and respondent filed briefs that were followed by Schroder's reply brief. Respondent submitted pertinent portions of the record including court transcripts from Schroder's change of plea hearing and Schroder's sentencing hearing. In addition, respondent provided copies of Schroder's correspondence with the state court and Schroder's motion for post-conviction relief.

         Schroder asks for an evidentiary hearing, that his sentence be vacated and that a new trial be ordered.


         A petition seeking a writ of habeas corpus may not be granted as to any claim that was adjudicated on the merits in state court unless the decision on that claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established” U.S. Supreme Court law or “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)(1), (2). A state-court decision is “contrary to” Supreme Court law if the state court arrived at a conclusion opposite that reached by the Supreme Court on a question of law or if the state court decided the case differently than the Supreme Court on facts that are materially indistinguishable. Williams v. Taylor, 529 U.S. 362, 405-06, 413 (2000). A state court decision is an “unreasonable application” of Supreme Court law if the state court identified the correct governing legal principle but unreasonably applied that principle to the facts of the case. Id. at 407-09, 413. Importantly for this case, a state court's fact determinations are presumed correct and a petitioner must rebut the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

         A federal court analyzing the “unreasonable application” prong of § 2254(d)(1) “should ask whether the state court's application of clearly established federal law was objectively unreasonable.” Id. at 409. This standard is a “substantially higher threshold” than whether the state court's determination was incorrect. Schriro v. Landrigan, 550 U.S. 465, 473 (2007); see Cullen v. Pinholster, 563 U.S. 170, 182 (2011) (stating that the standard of § 2254(d) is difficult to meet and highly deferential, demanding that state-court decisions receive the benefit of the doubt). As the Supreme Court has stated, if the standard of review in a habeas case

is difficult to meet, that is because it was meant to be. . . . [A] state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement.

Harrington v. Richter, 562 U.S. 86, 102-03 (2011).

         The relevant state court decision is that of the last state court to review the issue. Lucas v. Montgomery, 583 F.3d 1028, 1030 (7th Cir. 2009). The standard of review in § 2254(d) applies even where the state court issued only a summary denial. Cullen, 563 U.S. at 187. In reviewing a summary denial, the habeas court must determine what arguments or theories could have supported the state court's decision and ask whether fair-minded jurists could disagree that those arguments or theories are inconsistent with a prior decision of the U.S. Supreme Court. Id. at 188.

         Review under § 2254(d)(1) (the “contrary to” or “unreasonable application” provision) is limited to the record before the state court that adjudicated the claim on the merits. Cullen, 563 U.S. at 180-82. Because the deferential standards in § 2254(d) control, this court must take those standards into account when deciding whether an evidentiary hearing is appropriate. Schriro, 550 U.S. at 474. Any evidence that would be introduced in federal court would be irrelevant to review under § 2254(d)(1). Cullen, 563 U.S. at 184-85. If a claim has been adjudicated on the merits by a state court, the federal habeas petitioner must rely only on the record that was before the state court. Id.

         When § 2254(d)(1) does not bar federal habeas relief-for instance when a claim was not adjudicated on the merits in state court-§ 2254(e)(2) permits an evidentiary hearing in limited circumstances. Cullen, 563 U.S. at 185-86. If the petitioner failed to develop the factual basis of a claim in state-court proceedings, the court may conduct an evidentiary hearing only if the petitioner shows that (1) the claim relies on either a new rule of constitutional law made retroactive to cases on collateral review or a factual predicate that could not have been previously discovered through the exercise of due diligence, and (2) the facts underlying his claim would be sufficient to establish by a clear and convincing evidence that but for the constitutional error no reasonable fact-finder would have found him guilty. § 2254(e)(2).


         A. Ineffective assistance of counsel

         Schroder contends that numerous errors by two of his attorneys constituted ineffective assistance of counsel. To establish ineffective assistance of counsel a petitioner must show that counsel's performance was deficient and that he was prejudiced as a result. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

         For the performance prong of the Strickland test, the petitioner must establish that “counsel's representation fell below an objective standard of reasonableness.” Id. at 688. The court must determine “whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Id. at 690. Strickland permits latitude in permissible attorney conduct. See id. at 689. Judicial scrutiny is “highly deferential” and the court strongly presumes that counsel's conduct was reasonable. Id. The petitioner must overcome the presumption that the challenged action might be considered sound trial strategy. Id. Counsel's performance must be evaluated from his or her perspective at the time; hindsight should not distort the evaluation. Id.

         To demonstrate prejudice, the 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.” Id. at 694. This standard requires a substantial, not just conceivable, likelihood of a different result. Cullen, 563 U.S. at 189.

         The state trial court rejected Schroder's ineffective-assistance-of-counsel claims on the merits without holding any hearing.[4] Because the state court addressed the merits of this argument, no hearing is allowed in this court under Cullen, notwithstanding that the trial court held no hearing. If on the record the Milwaukee County Circuit Court's decision[5] was not contrary to or an unreasonable application of U.S. Supreme Court law and was not based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, Schroder's petition must be denied.

         In its August 19, 2010, decision, the circuit court considered and rejected Schroder's ineffective-assistance-of-counsel arguments by applying the controlling standard of Strickland. (Doc. 1 at 2-5.) Thus, the decision is not contrary to Supreme Court authority.

         Schroder contends that trial counsel (Attorney Cleghorn) was ineffective for a myriad of reasons, including failing to prepare a defense, failing to interview certain witnesses, failing to allow Schroder to view a piece of evidence (a DVD recording of the statement of one of the victims), and inadequate communication. As for Schroder's claim that counsel failed to prepare a defense, Judge Martens wrote that all of the claims against counsel “were virtually addressed by the evidentiary hearing held on defendant's motion to withdraw his pleas.” (Doc 1. at 17.) During that hearing, held by Judge McMahon, Judge McMahon found as follows:

The defendant wanted a defense. But if there is no defense in fact, the attorney can't make it up.
The only defense is where the facts lead, and here the attorney said the defense was that he did not do it, that the State did not have sufficient evidence that he did it.
These witnesses the defendant wanted primarily would have no relevance but certainly not admissible testimony to offer assuming the description of their testimony as set forth on this record.

(Doc. 13-2 at 121-22.) Regarding Schroder's claim that counsel failed to interview certain witnesses, Judge Martens wrote that counsel

testified [in the evidentiary hearing held on defendant's motion to withdraw his pleas] that she had made attempts to contact Curt Lanhoff, one of the witnesses (the grandma's boyfriend in one case) which the defendant claims she failed to contact, but was told he wasn't living with the grandma at that house any more. She also testified she attempted to contact Roger Schroder by letter, another witness (defendant's brother) which the defendant wanted her to contact. She stated this witness was in state custody, and she did not receive a response from him. The court found that the evidence that the defendant wanted to present from these witnesses would not have been admissible in any case. These are just some of the examples which sufficiently address the defendant's current claims.

(Doc. 1 at 18 (internal citations omitted).) Regarding Schroder's claim that he was not allowed to view a DVD entered into evidence, Judge Martens pointed to the testimony of counsel from the evidentiary hearing: “Counsel testified that she tried on a number of occasions to get clearance from the jail to bring the DVD in, but could not do so.” (Doc. 1 at 18.) In addressing Schroder's claim that he received inadequate communication from counsel, Judge Martens relied on the findings from the evidentiary hearing. During that hearing, Judge McMahon stated:

I realize that even now there is some disagreement as to how many letters Miss Cleghorn sent, how long she spent with the defendant; but there is no question she met with the defendant, there is no question that on the day of trial on that second day she met with him extensively and talked with him ...

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