United States District Court, E.D. Wisconsin
SCOTT R. SHALLCROSS, Petitioner,
WILLIAM POLLARD, Respondent.
Stadtmueller U.S. District Judge
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).
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).
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).
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).
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).
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).
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).
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).
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).
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,
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). (Docket #12, Ex. 4
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).
Shallcross did not file a timely appeal to the Wisconsin
Supreme Court. (Docket #12, Ex. 5) (citing Wis.Stat. §
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).
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). 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.
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
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 ...