United States District Court, E.D. Wisconsin
CHAD J. LURVEY, Petitioner,
MICHAEL DITTMANN, Respondent.
DECISION AND ORDER
JOSEPH UNITED STATES MAGISTRATE JUDGE
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.
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.)
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.)
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.)
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.
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).
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. §
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
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).
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
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.
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.
Use of Drug ...