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Frisch v. Clements

United States District Court, E.D. Wisconsin

December 20, 2016

DANIEL W FRISCH, Petitioner,
MARC CLEMENTS, Respondent.


          HON. PAMELA PEPPER United States District Judge

         On December 26, 2013, petitioner Daniel Frisch, representing himself, filed a petition for a writ of habeas corpus under 28 U.S.C. §2254, seeking relief from the sentence imposed pursuant to his 2010 conviction in Manitowoc County Circuit Court. Dkt. No. 1. The petitioner challenges his sentence on two grounds: (1) he argues that the admission of an anonymous witness' statements through the arresting officer violated the rules of evidence; and (2) he argues that the admission of the anonymous witness' statement through this officer violated his Sixth Amendment right to confrontation. Id. at 3. For the reasons explained below, the court denies the petition.


         A. The Facts At Trial

         On December 14, 2010, the Manitowoc County Circuit Court entered a judgment of conviction against the petitioner for operating a motor vehicle under the influence with an enhancer (12th offense), pursuant to Wis.Stat. §§346.63(1)(a) and 346.65(2)(g)2. Dkt. No. 12-1 at 1. The circuit court sentenced him to seven years of confinement and five years of extended supervision. Id.

         At the trial, despite the petitioner's motion in limine, the arresting officer testified about the arrest, including statements made to him by an anonymous witness. Dkt. No. 12-5 at ¶6; Dkt. No. 13 at 1. The officer testified to the following facts: in the course of responding to a 911 call about an erratic driver, the officer was approached by an unidentified man who told the officer that he had seen a black pickup truck driving on the wrong side of the road, that it almost hit the gas pumps at a gas station, that he recognized the driver as “Dan, ” and that the driver appeared to be intoxicated when he got out of the truck. Dkt. No. 12-5 at 2. The man also provided two possible addresses at a trailer park where he believed the petitioner might live. Id. The officer had dispatch cross-check the name “Dan” with the addresses the anonymous witness had provided, and obtained a match. Id. He then went to the trailer park, where he observed the petitioner standing next to the petitioner's open car door. Id. at 2-3. The officer asked the petitioner some questions, to which the petitioner responded that he had recently returned from renting an apartment and he was the only one in the car. Id. Due to the petitioner's drunken behavior, the officer transported him to the police department to perform sobriety tests. Id. at 3. The petitioner had a blood alcohol level of 0.218. Id. At the station, the petitioner commented that he may have been driving on the wrong side of the road while changing his radio. Id.

         B. The Appeals

         On January 25, 2012, the petitioner filed a direct appeal from the conviction, arguing that the admission of the anonymous witness' statement was contrary to the rules of evidence and violated his federal and state constitutional rights to confrontation. Dkt. No. 1 at 3. Affirming the circuit court, the state appellate court found that court had admitted the informant's statements to show why the officer had gone to the petitioner's house, and that the court had instructed the jury regarding the proper use of the statements. Dkt No. 12-5 at ¶9. The state appellate court also found that even if the informant's statements were hearsay, their admission was, at most, harmless error, because the petitioner had failed the sobriety test and admitted to the officer that he had been driving on the wrong side of the road. Id. at ¶¶10, 13. On May 3, 2013, the petitioner sought review from the Wisconsin Supreme Court on the Confrontation Clause issue. Dkt. No. 1 at 3. The Wisconsin Supreme Court denied the petition on September 17, 2013. Dkt. No. 12-8 at 1. The petitioner filed this habeas case on December 26, 2013. Dkt. No. 1.

         C. The Proceedings in This Court

         In his May 5, 2014 screening order, Judge Clevert determined that the petitioner had exhausted his state remedies, and ordered the respondents to file an answer. Dkt. No. 8 at 3. The case was reassigned to this court on December 29, 2014. The petition is fully briefed. Because the state appellate court's ruling is not an unreasonable application of federal law, nor an unreasonable determination of the facts, the court will deny the petition.

         II. ANALYSIS

         A. Exhaustion of State Court Remedies

         Initially, the court will address the respondent's argument that the petitioner procedurally defaulted his claim that the admission of the informant's statement was contrary to the rules of evidence by not presenting this claim to the Wisconsin Supreme Court. Dkt. No. 15 at 14. In his brief to the Wisconsin Supreme Court, the petitioner clearly challenges the “law specific to this method of admitting evidence” (i.e. the hearsay exception under which the statements were admitted) as contrary to the confrontation clause. Dkt. No. 12-6 at 8. See Toney v. Franzen, 687 F.2d 1016, 1022 (7th Cir. 1982) (“It is sufficient that the ‘substantial equivalent' or ‘substance' of the federal habeas corpus claim has been presented.”) Even if he had not made that challenge in his Supreme Court brief, this court may review state law evidentiary determinations only to the extent that they affect a federal right. Ruhl v. Hardy, 743 F.3d 1083, 1098 (7th Cir. 2014). Thus, even if the petitioner failed to argue to the Supreme Court that the admission of the statement violated Wisconsin evidence rules, that failure would not prevent this court from reviewing the constitutional claim, because the exhaustion rule is “designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to federal courts . . . .” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)(emphasis added). The court finds, therefore, that the petitioner did exhaust his remedies on this claim.[1]

         B. Standard for Granting a ...

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