United States District Court, E.D. Wisconsin
DECISION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS AND DISMISSING CASE
JOSEPH, UNITED STATES MAGISTRATE JUDGE
Milwaukee County jury convicted Eric Lesueur of seven counts
of recklessly endangering safety while armed and one count of
being a felon in possession of a firearm. He was sentenced to
an aggregate of twenty-three years prison to be followed by
seventeen and one-half years extended supervision. Lesueur
seeks a writ of habeas corpus pursuant to 28 U.S.C. §
2254. He argues that his conviction and sentence are
unconstitutional because his trial counsel was ineffective.
For the reasons I explain below, the petition for writ of
habeas corpus will be denied and the case dismissed.
August of 2008, police arrested Lesueur for endangering
safety by shooting a gun at a group of seven people outside a
liquor store in Milwaukee. At Lesueur's trial, two
witnesses, Anthony Vaughn and Darrell Nicholson, Sr.,
identified Lesueur as the shooter. Lesueur's counsel
failed to obtain and use a recorded police interview of
Nicholson to impeach him at trial. This failure is the crux
of Lesueur's habeas petition.
the owner of the liquor store, was amongst the group shot at
and was the one to call 911 to report the shooting. (Docket #
1-2 at 2.) When police arrived, however, they arrested
Nicholson for carrying a concealed weapon after they found a
handgun in his truck. (Id.) At the station, the
police interviewed Nicholson. The interview was recorded and
summarized in a police report. Most relevant to Lesueur's
habeas petition, the police report stated that Nicholson told
the police that he never saw who fired the shots. (Docket #
8-2 at 63-64.) The police report also indicated that the
interview was recorded using a digital audio recorder which
was transferred to a CD and placed on inventory.
counsel was provided the police report summary as part of
discovery but he was not provided or obtained the recorded
interview until Nicholson had already testified at the trial.
(Docket # 8-10 at 117-18.) In the recorded interview,
Nicholson did talk about Lesueur, using his nickname
“Gold” and “Goldie.” (Docket # 8-14.)
But he did not identify Lesueur as the shooter.
trial, however, Nicholson identified Lesueur as the shooter.
Specifically, he testified as follows. He closed his liquor
store with the help of his brothers, his son, and his
employee, Anthony Vaughn. They “all proceeded to leave
at about 9:30 p.m.” when they “heard one shot go
off. And after that . . . there was several shots that
started to go off.” (Docket # 8-9 at 63-64.) At first,
he did not recognize the shooter, but when there was a break
in the shooting, he noticed that his “son was
shot” so they “got him in the car” and
“[w]hen I got ready to get in the truck, an individual
came out . . . and started shooting at me.”
(Id. at 67.) He then saw that the shooter was
Lesueur. (Id. at 68.) He testified that he told the
police that Lesueur was the shooter at the scene “when
the detecs [sic] had me sitting there talking, about maybe 15
minutes after the shooting.” (Id. at 78-79.)
Lesueur's counsel did not cross-examine Nicholson on the
discrepancy between his trial testimony and his recorded
police interview. Nor did he use the police report summary to
impeach Nicholson. (Docket # 8-10.)
the other eye-witness, Anthony Vaughn, who worked at the
liquor store, testified as follows. He was helping close the
store and as he was locking up he heard “[j]ust a bunch
of shots, whole lot of shots.” (Id. at 34.)
“At first, I didn't know where any of the shots
[were] coming from there was so many of them.”
(Id. at 35.) “I stepped in my little doorway.
I was looking. Then that is when I see [sic] Gold standing
across the street next to the day care over there changing
clips.” (Id. at 35-36.) “Then I seen him
shoot again, yes.” (Id. at 37.) On
cross-examination, Lesueur's counsel brought out the fact
that Vaughn did not report to the police that Lesueur was the
shooter until more than a week after the shooting.
(Id. at 52.) Additionally, Lesueur's counsel
offered the testimony of Angela Bradley who testified that
Vaughn told her that Nicholson paid him to lie at trial.
(Docket # 8-11 at 26.) During his testimony, Vaughn denied
being paid to lie. (Docket # 8-10 at 45-46.)
than Nicholson and Vaughn, the only other witness relevant to
the identification of the shooter was Detective Thompson.
Detective Thompson testified that he was made aware of
Nicholson's identification of Lesueur at some point
subsequent to the night of the shooting but couldn't
remember when exactly that was. (Docket # 8-10 at 103.) He
went on to testify that he found out specifically about
Lesueur being named as the shooter at the scene.
jury convicted Lesueur on all counts. Lesueur filed a
post-conviction motion arguing that if Nicholson's CD
recording had been turned over before trial, the defense
lawyer could have used it to impeach Nicholson's trial
testimony. The trial court denied the motion, finding that
Lesueur had not established prejudice because: (1) the
defense had the report summarizing the CD that could have
been used to impeach Nicholson; (2) Lesueur's trial
lawyer had the CD recording during the trial, and thus had
“enough time that he could have still used [the CD] to
whatever extent he wanted to use it”; and (3) the CD
recording focused mostly on Nicholson's gun, about
“who was shooting Darrell Nicholson's gun . . . .
There's no discussion . . . . except in a very limited
way of who was shooting at” the seven victims. (Docket
# 1-2 at 4.)
appealed to the Wisconsin Court of Appeals both his
conviction and the denial of his post-conviction motion. The
Wisconsin Court of Appeals found Lesueur did not suffer
prejudice from his counsel's errors (and because it found
that there was no prejudice, it did not address whether or
not Lesueur's counsel's performance was deficient).
(Id. at 8-9.) The court of appeals agreed with the
trial court's finding that Lesueur's attorney had an
opportunity to listen to the recording and could have
“used it to whatever extent he wanted to use it,
” such as re-calling Nicholson. (Id. at 8.)
The court of appeals also reiterated the trial court's
finding that the “salient aspects of the recorded
interview were merely cumulative to the information in the
[written report] of the recorded interview.”
(Id. at 8-9.) It also found the contents of the CD
recording “largely inconsequential.”
(Id. at 9.) Lesueur filed a petition for review in
the Wisconsin Supreme Court, which was denied. Subsequently,
Lesueur timely filed this petition for writ of habeas corpus.
claims that the Wisconsin Court of Appeals, the last court to
look at his case, made two errors, one under 28 U.S.C. §
2254(d)(1) by unreasonably applying Strickland v.
Washington, 466 U.S. 668 (1984) and another under 28
U.S.C. § 2254(d)(2) by unreasonably determining the
facts. Different standards govern these two clauses. Under 28
U.S.C. § 2254(d)(1), a decision is “contrary
to” clearly established federal law if the rule the
decision applies differs from governing law set forth in
Supreme Court cases, Bell v. Cone, 535 U.S. 685, 694
(2002), and a decision involves an “unreasonable
application” of Supreme Court precedent if the
decision, while identifying the correct governing rule of
law, applies it unreasonably to the facts of the case,
Williams v. Taylor, 529 U.S. 362, 407 (2000). Under
28 U.S.C. § 2254(d)(2), a decision “involves an
unreasonable determination of the facts if it rests upon
fact-finding that ignores the clear and convincing weight of
the evidence.” Goudy v. Basinger, 604 F.3d
394, 399-400 (7th Cir. 2010) (citing Ward v.
Sternes, 334 F.3d 696, 704 (7th Cir. 2003)).
28 U.S.C. ...