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Shallcross v. Pollard

United States District Court, E.D. Wisconsin

October 17, 2016

SCOTT R. SHALLCROSS, Petitioner,
v.
WILLIAM POLLARD, Respondent.

          ORDER

          J.P. Stadtmueller U.S. District Judge

         Scott R. Shallcross (Shallcross) pled guilty to two counts of homicide by intoxicated use of a motor vehicle. (Docket #12, Exs. 1, 15). Mr. Shallcross's petition for a writ of habeas corpus, challenging those convictions, is now before the Court. (Docket #1). The matter is fully briefed and ripe for decision. (Docket #21, #25, #30).

         1.BACKGROUND

         On November 27, 2009, at approximately 12:28 a.m., Mr. Shallcross crashed his Honda Civic (Civic) into a truck while driving drunk in the City of Milwaukee. (Docket #12, Ex. 2 ¶ 2). According to witness reports, the Civic was driving at speeds in excess of 80-100 miles per hour just before the collision occurred; both of the occupants of the truck-Jeremy Neuenfeldt and Thomas Ballman-died. (Docket #12, Ex. 15 ¶ 2).

         When first responders arrived at the scene, they found two survivors in the Civic. (Docket #12, Ex. 15 ¶ 2). Mr. Shallcross was in the backseat and Daniel Gorectke (Gorectke) was in the passenger seat. (Docket #12, Ex. 2 ¶ 2). No one was in the driver's seat. (Docket #12, Ex. 2 ¶ 2). After cutting the roof off of the vehicle to reach Mr. Shallcross and Mr. Gorectke, both men were taken to the hospital. (Docket #12, Ex. 2 ¶ 2).

         During a police interview shortly thereafter, Mr. Gorectke reported that he and Mr. Shallcross had been drinking at a bar prior to the car accident. (Docket #12, Ex. 2 ¶ 3). According to the police report, Mr. Gorectke stated that “[w]hen they were getting ready to leave, a person they were talking with told them that [Mr. Gorectke] []and his friend were too drunk to drive.…” (Docket #12, Ex. 2 ¶ 3).

         The police next spoke with Mr. Shallcross at approximately 3:03 a.m., and requested a blood sample. (Docket #12, Ex. 2 ¶ 4). An officer and two nurses documented Mr. Shallcross's oral consent to the blood draw. (Docket #12, Ex. 2 ¶ 4). The blood test performed on that sample revealed that Mr. Shallcross had a blood alcohol content of 0.158. (Docket #12, Ex. 2 ¶ 4).

         While at the scene investigating, police also interviewed a man who reported seeing “someone cross in front of the suspect vehicle and then head westbound.” (Docket #12, Ex. 2 ¶ 5). Though police investigated the possibility of a third-party driver, they were not able to identify anyone, and no local hospitals reported contact with potential suspects. (Docket #12, Ex. 2 ¶ 5).

         Later that evening, police spoke with Mr. Gorectke again. (Docket #12, Ex. 2 ¶ 6). He reported that “Shallcross wanted [him] to say that there was someone else, a third person, in the car that was driving at the time of the accident.” (Docket #12, Ex. 15 ¶ 6). However, Mr. Gorectke stated that Mr. Shallcross was the driver of the Civic and that “immediately after the accident Mr. Gorectke observed Shallcross crawling into the back seat from the driver's seat.” (Docket #12, 2 ¶ 6).

         Two days later, on November 29, 2009, Mr. Shallcross admitted to the police that he was driving the Civic at the time of the accident. (Docket #12, Ex. 2 ¶ 7). In a follow up interview on November 30, 2009, Mr. Shallcross provided further testimony regarding his drinking prior to the incident and how he crawled into the backseat of the car after the collision. (Docket #12, Ex. 2 ¶ 7).

         On May 14, 2010, represented by trial counsel-Matthew Huppertz-Mr. Shallcross pled guilty to two counts of homicide by intoxicated use of a motor vehicle in Milwaukee County Circuit Court. (Docket #12, Ex. 15). Approximately four months later, on September 3, 2010, the Honorable Kevin E. Martens sentenced Mr. Shallcross to two twelve-year terms of imprisonment, which were to operate consecutively, along with a six-year term of supervised release. (Docket #12, Ex. 1).

         After pleading guilty, Mr. Shallcross retained new counsel-Thomas Kurzynski-to file a post-conviction motion. (Docket#12, Ex. 4 ¶ 4). In those proceedings, which will be collectively referenced by the Court hereinafter as “Shallcross I, ” Mr. Shallcross asked the cour t to permit him to withdraw his guilty plea on the grounds that his trial counsel was ineffective for, inter alia, [1]failing to pursue a motion to suppress his confession. (Docket #12, Ex. 4 ¶ 4). Specifically, Mr. Shallcross argued that his inculpatory statements were made “involuntarily” because they were made after he had allegedly invoked his right to counsel under Miranda v. Arizona, 384 U.S. 436 (1966).[2] (Docket #12, Ex. 4 ¶¶ 19-28)

         On October 23, 2012, the Wisconsin Court of Appeals affirmed the circuit court's decision to deny relief. (See generally Docket #12, Ex. 4). First, the court of appeals ruled that Mr. Shallcross's trial counsel had not performed deficiently by failing to pursue a motion to suppress his statements because Mr. Shallcross had, on various occasions during the underlying criminal prosecution, expressly disclaimed any desire to pursue pretrial motions. (Docket 12, Ex. 4 ¶¶ 16-18) (“The record shows that Shallcross made the decision to accept responsibility for the crimes in this case rather than file a suppression motion. The decision was his to make. His lawyer did not act deficiently by abiding by that decision.”) (internal citations omitted). Second, the appellate court ruled that Mr. Shallcross had suffered no prejudice from trial counsel's failure to inform Mr. Shallcross that certain statements might have been rendered involuntarily. (Docket #12, Ex. 4 ¶¶ 19-28) (concluding that Mr. Shallcross's invocation of a lawyer was “at most” ambiguous and that his request to talk to his mother had no constitutional significance).

         Mr. Shallcross did not file a timely appeal to the Wisconsin Supreme Court. (Docket #12, Ex. 5) (citing Wis.Stat. § (Rule) 809.62(4)(c)).

         Thereafter, Mr. Shallcross returned to state court on a motion for collateral post-conviction relief under Wis.Stat. § 974.06. (Docket #12, Ex. 2 ¶ 1). For the sake of clarity, these proceedings will be collectively referenced hereinafter by the Court as “Shallcross II.” In Shallcross II, Mr. Shallcross once again challenged the effectiveness of his trial counsel and also challenged the effectiveness of his post-conviction counsel. (Docket #12, Ex. 2 ¶ 1). More specifically, Mr. Shallcross again argued that trial counsel was ineffective in failing to pursue a motion to suppress his confession. This time, however, Mr. Shallcross presented three (3) distinct theories upon which a motion to suppress should have been made. (Docket #12, Ex. 6 at 17-34). He argued that the statements could have been suppressed on the grounds that they were made after: (1) the police arrested him without probable cause; (2) law enforcement deprived him of a timely probable cause hearing under County of Riverside v. McLaughlin, 500 U.S. 44 (1991); and (3) he had invoked his right to counsel under Miranda. (Docket #12, Ex. 2 ¶¶ 27-31; Docket #12, Ex. 6 at 17-34). Mr. Shallcross also argued that his trial counsel was ineffective for failing to pursue a motion to suppress blood draw evidence following his purportedly unlawful arrest. (Docket #12, Ex. 2 ¶¶ 16-26; Docket #12, Ex. 6 at 17-23, 28-30). The trial court denied the motion without an evidentiary hearing. (Docket #1, Ex. 2 ¶ 10).

         On April 21, 2015, the Wisconsin Court Appeals issued a per curiam opinion affirming the circuit court's decision to deny Mr. Shallcross relief and rejecting Mr. Shallcross's assertion that he was entitled to an evidentiary hearing. (See generally Docket #12, Ex. 2).[3] After the court of appeals issued its decision, Mr. Shallcross timely petitioned for review, but the Wisconsin Supreme Court declined that request on September 9, 2015. (Docket #12, Ex. 3.)

         2. CLAIMS

         Mr. Shallcross filed his petition for a writ of habeas corpus in this Court on September 21, 2015. (See generally Docket #1). In that petition, Mr. Shallcross argues that:

1. His trial counsel was ineffective for failing to pursue a motion to suppress evidence obtained from a blood draw following his allegedly unlawful arrest;
2. His trial counsel was ineffective for failing to pursue a motion to suppress his inculpatory statements, also following the allegedly unlawful arrest;
3. His trial counsel was ineffective for failing to pursue a motion to suppress his inculpatory statements after Mr. Shallcross allegedly invoked his right to counsel under Miranda;
4. His trial counsel was ineffective for failing to pursue a motion to suppress his inculpatory statements because they were allegedly obtained in violation of Riverside;
5. His appellate counsel was ineffective for failing to provide Mr. Shallcross “with a meaningful ...

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