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Lurvey v. Dittmann

United States District Court, E.D. Wisconsin

January 6, 2017

CHAD J. LURVEY, Petitioner,
v.
MICHAEL DITTMANN, Respondent.

          DECISION AND ORDER

          NANCY JOSEPH UNITED STATES MAGISTRATE JUDGE

         Chad J. Lurvey, a prisoner in Wisconsin custody, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Lurvey was convicted of two counts of first degree intentional homicide. (Am. Habeas Petition at 2, Docket # 6.) Lurvey was sentenced to two consecutive life terms without parole. (Id.) Lurvey alleges that his due process and confrontation rights were violated when the prosecution surprised the defense and utilized drug dog search testimony that it had promised not to use. (Id. at 6.) Lurvey further alleges that his due process and confrontation rights were violated when the trial court approved the prosecution's use of “from the grave” hearsay. (Id. at 7.) For the reasons stated below, the petition for writ of habeas corpus will be denied and the case dismissed.

         BACKGROUND

         On June 30, 2011, a Waukesha County jury found Lurvey guilty of two counts of first degree intentional homicide. (Judgment of Conviction, Answer to Habeas Petition (“Answer”), Exh. A, Docket # 14-1.) On August 24, 2002, Brian Lazzaro and Andrew Long disappeared. (State v. Lurvey, 2011AP2881(Wis. Ct. App. May 8, 2013), Answer, Exh. E at 2, Docket # 14-5.) Both Lazzaro and Long were involved in the drug trade and Lurvey stored drugs for Long on his property. (Id.) Lurvey's residence was located on a large parcel of family-owned land containing, in part, a private pond, woods, storage buildings, and a mechanical shop. (Id.) The shop was used by Lurvey and his friends to work on cars. (Id.)

         Police learned that Lazzaro and Long had visited Lurvey at his shop on August 24, 2002, in connection with a drug debt. (Id.) Lurvey told police that he gave $5, 000 to Long in partial settlement of the debt and that Lazzaro and Long then drove away in Lazzaro's Dodge Durango. (Id.) Lurvey admitted storing large amounts of cocaine and marijuana for Long. (Id.) At the time of the disappearance, fifteen pounds of Long's marijuana was stashed in Lurvey's garage in the trunk of a car owned by Long. (Id.) Lurvey initially told police he had destroyed the marijuana after Long's disappearance. (Id.) Lurvey later admitted this was a lie and turned the marijuana over to police. (Id.) Lurvey stated that he had also been storing four kilos of cocaine for Long in his basement. (Id.) Lurvey told police that Lazzaro and Long had taken the cocaine when they drove away on August 24, 2002. (Id.)

         Lurvey was the last person known to have seen or heard from Long and Lazzaro. (Id.) In the weeks following the disappearance, the Durango was discovered in a bowling alley parking lot, and the victims' family members would visit the Lurvey property demanding additional information. (Id.) On September 5, 2002, while part of a small search party, Lazzaro's parents saw a body floating in the secluded Lurvey pond. (Id. at 3.) The body was that of Brian Lazzaro, and police immediately began a more extensive search. (Id.) Andrew Long's body was also discovered in the pond. (Id.) Both deaths were caused by multiple gunshot wounds. (Id.) Both bodies were bound with plastic cable ties, towing chains, and moving blankets. (Id.) Similar ties, chains, and blankets were located in Lurvey's shop. (Id.) One of Lurvey's shotguns was missing. (Id.)

         In June 2003, police again searched the Lurvey pond and recovered some of the victims' personal items as well as Lurvey's missing shotgun. (Id.) The shotgun's barrel had been sawed off, and the sawed-off portion was also found in the pond. In the years that followed, there was a John Doe investigation. (Id.) In 2009, Lurvey was formally charged with two counts of first-degree intentional homicide. (Id.) After a twelve-day jury trial, Lurvey was convicted of both counts. (Id.)

         Lurvey filed a direct appeal to the Wisconsin Court of Appeals, arguing that his due process and confrontation rights were violated when the circuit court allowed drug dog search testimony that the prosecution promised not to use and thus did not provide the defense with the underlying Brady v. Maryland, 373 U.S. 83 (1963) material. (Defendant-Appellant Br., Answer, Exh. B at 10, Docket # 14-2.) Lurvey also argued that he was prejudiced by the admission of hearsay testimony from one of the victims stating that he was afraid Lurvey was going to kill him. (Id. at 11.) The court of appeals affirmed Lurvey's conviction on May 8, 2013. (Docket # 14-5.) The Wisconsin Supreme Court denied Lurvey's petition for review on November 26, 2013. (Answer, Exh. H, Docket # 14-8.) Lurvey filed this petition for a writ of habeas corpus on March 4, 2014 (Docket # 1) and filed an amended petition on March 27, 2014 (Docket # 6).

         STANDARD OF REVIEW

         Lurvey's petition is governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Under AEDPA, a writ of habeas corpus may be granted if the state court decision on the merits of the petitioner's claim (1) was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” 28 U.S.C. § 2254(d) (1); or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, ” 28 U.S.C. § 2254(d)(2).

         A state court's decision is “contrary to . . . clearly established Federal law as established by the United States Supreme Court” if it is “substantially different from relevant [Supreme Court] precedent.” Washington v. Smith, 219 F.3d 620, 628 (7th Cir. 2000) (quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)). The court of appeals for this circuit recognized the narrow application of the “contrary to” clause:

[U]nder the “contrary to” clause of § 2254(d)(1), [a court] could grant a writ of habeas corpus . . . where the state court applied a rule that contradicts the governing law as expounded in Supreme Court cases or where the state court confronts facts materially indistinguishable from a Supreme Court case and nevertheless arrives at a different result.

Washington, 219 F.3d at 628. The court further explained that the “unreasonable application of” clause was broader and “allows a federal habeas court to grant habeas relief whenever the state court ‘unreasonably applied [a clearly established] principle to the facts of the prisoner's case.'” Id. (quoting Williams, 529 U.S. at 413).

         To be unreasonable, a state court ruling must be more than simply “erroneous” and perhaps more than “clearly erroneous.” Hennon v. Cooper, 109 F.3d 330, 334 (7th Cir. 1997). Under the “unreasonableness” standard, a state court's decision will stand “if it is one of several equally plausible outcomes.” Hall v. Washington, 106 F.3d 742, 748-49 (7th Cir. 1997). In Morgan v. Krenke, the court explained that:

Unreasonableness is judged by an objective standard, and under the “unreasonable application” clause, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.”

232 F.3d 562, 565-66 (7th Cir. 2000) (quoting Williams, 529 U.S. at 411), cert. denied, 532 U.S. 951 (2001). Accordingly, before a court may issue a writ of habeas corpus, it must determine that the state court decision was both incorrect and unreasonable. Washington, 219 F.3d at 627.

         ANALYSIS

         Lurvey challenges his custody on two grounds. First, he argues that the Wisconsin Court of Appeals unreasonably applied the facts in light of the evidence presented at trial when it upheld the trial court's determination that the prosecutor's broken promise not to use drug dog search evidence at trial, in tandem with its refusal to furnish search dog discovery, was not prejudicial. (Petitioner's Br. at 13, Docket # 16.) Second, Lurvey argues that the court of appeals unreasonably applied clearly established federal law when it upheld the trial court's application of the state of mind hearsay exception to allow the prosecution to introduce Andrew Long's “from the grave” hearsay. (Id. at 21.) I will address each in turn.

         1. Use of Drug ...


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