United States District Court, E.D. Wisconsin
DECISION AND ORDER
ADELMAN DISTRICT JUDGE
Laughrin is a Wisconsin prisoner representing himself. He
brings this petition for a writ of habeas corpus under 28
U.S.C. § 2254, alleging ineffective assistance of trial
underlying facts of Laughrin's case are as follows:
Laughrin was charged with numerous counts concerning the
tragic death of fifteen-year-old M.K., who died from a drug
overdose at Laughrin's home. Laughrin was a drug dealer;
M.K. and a friend had come to his house looking to get high.
Laughrin sold the girls marijuana, which they smoked at his
house. He then gave M.K. a Suboxone pill, which she ingested.
After M.K. took the Suboxone pill, neither Laughrin nor
M.K.'s friend could revive her. Laughrin responded by
taking M.K. from his house to her friend's house and
leaving M.K.-unconscious-in the snow in the front yard.
Laughrin then drove off, and shortly thereafter M.K. was
State v. Laughrin, No. 2011AP1600-CR, 2012 WL
2094392, ¶ 2 (Wis. Ct. App. June 12, 2012). Laughrin
pled guilty to second-degree reckless homicide, possession of
THC (marijuana) with intent to deliver, and possession of a
non-narcotic controlled substance (Suboxone) with intent to
sentencing, Laughrin moved to withdraw his plea on the basis
of newly discovered evidence, citing newly acquired expert
testimony (then in the form of a report) from Dr. Jeffrey
Junig that death from Suboxone is rare. Junig's report
stated that Suboxone only presents a risk of death when taken
by someone who (1) is not tolerant to opioids and (2) has
taken other respiratory depressants, such as a
benzodiazepine, to which the person is also not tolerant. The
report stated that both were true of M.K. and that other
factors, such as her sleep position, may have exacerbated the
respiratory depression caused by the drugs she took and
contributed to her death. The report characterized M.K.'s
“tragic death” as “far from
predictable” and the result of “a confluence of
several unfortunate events.” Id. ¶¶
6-7. Laughrin argued that Junig's report cast doubt on
whether he created a substantial risk of death or great
bodily harm to M.K. by giving her Suboxone and whether he was
aware of the risk, both of which the state must show to prove
second-degree reckless homicide in Wisconsin. See
Wis. Stat. §§ 939.24(1), 940.06. The trial court
held a hearing and denied Laughrin's motion to withdraw
his plea, finding that Junig's report was “not new
evidence, but rather a new theory that utilized information
Laughrin already had in his possession” when he pled
guilty. Laughrin, 2012 WL 2094392, ¶ 8.
sentencing, Laughrin again moved to withdraw his plea. He
alleged that trial counsel, Robin Shellow, provided
ineffective assistance at the plea stage by failing to
properly investigate and counsel him as to the properties of
Suboxone before he pled guilty. He further alleged that
Shellow provided ineffective assistance of counsel as to his
presentencing motion to withdraw his guilty plea by failing
to either (1) raise her own ineffectiveness as a basis for
allowing him to withdraw his plea or (2) withdraw as counsel
so as to allow him to raise her ineffectiveness himself. The
trial court denied Laughrin's motion without a hearing.
Laughrin appealed, the Wisconsin Court of Appeals affirmed,
and the Wisconsin Supreme Court denied review.
filed this petition for a writ of habeas corpus, presenting
the same claims that he raised on direct appeal to the
Wisconsin Court of Appeals. Most of his claims-e.g.,
that he should have been permitted to withdraw his guilty
plea based on new evidence and that the trial court should
have held an evidentiary hearing on his postconviction
motion-were argued and decided there on the basis of state
law. Claims based on state law are not cognizable on federal
habeas review. See 28 U.S.C. § 2254(a).
However, because Laughrin brings this petition pro
se, I must give his claims a liberal construction.
Perruquet v. Briley, 390 F.3d 505, 512 (7th Cir.
2004). I find that Laughrin has presented cognizable claims
for federal habeas relief based on ineffective assistance of
trial counsel and will consider the same alleged errors he
raised in the state courts.
establish ineffective assistance of counsel, a petitioner
must show that his lawyer performed deficiently and that he
suffered prejudice as a result. Strickland v.
Washington, 466 U.S. 668, 687-94 (1984). To establish
deficient performance, a petitioner must demonstrate that his
lawyer's representation fell below an objective standard
of reasonableness as measured by prevailing professional
norms. Id. at 687. “This requires showing that
counsel made errors so serious that counsel was not
functioning as the ‘counsel' guaranteed by the
Sixth Amendment.” Id. To establish prejudice,
“[t]he defendant 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.
Wisconsin Court of Appeals adjudicated Laughrin's
ineffective-assistance claims on the merits, so my review of
Laughrin's claims is limited. Federal courts cannot grant
habeas relief to state prisoners on any claim that has
already been adjudicated on the merits by a state court
unless the state court's decision (1) “was contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States” or (2) “was based on an
unreasonable determination of the facts in light of the
evidence presented.” § 2254(d)(1)-(2). First, the
decision of the Wisconsin Court of Appeals was not
“contrary to” clearly established law because it
identified and applied the correct legal standard for
evaluating ineffective assistance of counsel claims,
Strickland. Hinesley v. Knight, No.
15-2122, 2016 WL 4758437, at *7 (7th Cir. Sept. 13, 2016)
(first citing Bell v. Cone, 543 U.S. 447, 452-53
(2005) (per curiam); and then citing Williams v.
Taylor, 529 U.S. 362, 405 (2000)). Second, Laughrin does
not challenge the factual determinations of the state court,
so I need not consider whether the state court's
determination of the facts in light of the evidence presented
was unreasonable. Therefore, I consider only whether the
Wisconsin Court of Appeals unreasonably applied
that a state court decision involved an unreasonable
application of clearly established federal law, “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, 103 (2011). This is a difficult
standard for a habeas petitioner to meet “because it
was meant to be.” Id. at 102. “[H]abeas
corpus is a ‘guard against extreme malfunctions in the
state criminal justice systems, ' not a substitute for
ordinary error correction through appeal.” Id.
at 102-03 (quoting Jackson v. Virginia, 443 U.S.
307, 332 n.5 (1979) (Stevens, J., concurring in judgment)).
standard is particularly difficult to meet as to
ineffective-assistance claims. “The standards created
by Strickland and §2254(d) are both
‘highly deferential, ' and when the two apply in
tandem, review is ‘doubly' so.” Id.
at 105 (citations omitted) (first quoting
Strickland, 466 U.S. at 689; then citing Lindh
v. Murphy, 521 U.S. 320, 333 n.7 (1997); and then
quoting Knowles v. Mirzayance, 556 U.S. 111, 123
(2008)). Further, Strickland's general standard
allows for a substantial range of reasonable applications.
Id. (citing Knowles, 556 U.S. at 123).
Thus, “[w]hen § 2254(d) applies, the question is