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Lesueur v. Foster

United States District Court, E.D. Wisconsin

December 28, 2016

ERIC LESUEUR, Petitioner,
BRIAN FOSTER, Respondent.



         A 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.


         In 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.

         Nicholson, 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. (Id.)

         Lesueur's 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. (Id.)

         At 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.)

         As to 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.)

         Other 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. (Id.)

         The 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.)

         Lesueur 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.


         Lesueur 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)).

         1. 28 U.S.C. ...

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