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Salim v. Richardson

United States District Court, E.D. Wisconsin

January 26, 2017



          William C. Griesbach, Chief Judge United States District Court

         On December 27, 2016, Muhannad Salim filed this petition pursuant to 28 U.S.C. § 2254, asserting that his state court conviction and sentence were imposed in violation of the Constitution. Petitioner was convicted in Milwaukee County Circuit Court of one count of burglary, one count of violating a domestic abuse injunction, one count of criminal damage to property, two counts of stalking, and one count of bail jumping. He was sentenced to 9 years imprisonment and 5 years of extended supervision. Salim is currently incarcerated at Stanley Correctional Institution.

         I must give the case prompt initial consideration pursuant to Rule 4 of the Rules Governing § 2254 Cases, which reads:

If it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner. If the petition is not dismissed, the judge must order the respondent to file an answer, motion, or other response within a fixed time ....

Rule 4, Rules Governing § 2254 Cases. During my initial review of habeas petitions, I look to see whether the petitioner has set forth cognizable constitutional or federal law claims and exhausted available state remedies.

         "Habeas corpus petitions must meet heightened pleading requirements . ..." McFarland v. Scott, 512 U.S. 849, 856 (1994) (citing 28 U.S.C. § 2254 Rule 2(c)). The petition must "specify all the grounds for relief available to the moving party, " and "state the facts supporting each ground." 28 U.S.C. § 2255, Rule 2(b); see also Borden v. Allen, 646 F.3d 785, 810 (11th Cir. 2011) ("The § 2254 Rules and the § 2255 Rules mandate "fact pleading" as opposed to "notice pleading, " as authorized under Federal Rule of Civil Procedure 8(a)."). The reason for the heightened pleading requirement in habeas cases, as the Eleventh Circuit noted in Borden, is obvious:

Unlike a plaintiff pleading a case under Rule 8(a), the habeas petitioner ordinarily possesses, or has access to, the evidence necessary to establish the facts supporting his collateral claim; he necessarily became aware of them during the course of the criminal prosecution or sometime afterwards. The evidence supporting a claim brought under the doctrine set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), for example, may not be available until the prosecution has run its course. The evidence supporting an ineffective assistance of counsel claim is available following the conviction, if not before. Whatever the claim, though, the petitioner is, or should be, aware of the evidence to support the claim before bringing his petition.

Id. at 810. Were the rule otherwise, federal habeas would be transformed into "a vehicle for a so-called fishing expedition via discovery, an effort to find evidence to support a claim." Id. at 810 n.31.

         Here, it is clear from the petition and its attachments that Salim is not entitled to habeas relief under § 2254. Salim has listed five separate grounds of relief. First, he claims his trial counsel was ineffective for various reasons: (1) failing to move for suppression of evidence; (2) failing to move for dismissal of his burglary charge; (3) failing to hire an investigator; and (4) failing to obtain a voice recording and other evidence to refute his ex-wife's claims. Second, he alleges he was denied the right to an interpreter. Third, he claims he was subjected to vindictive prosecution. Fourth, he claims his trial and appellate counsel were ineffective for failing to raise the issue of his need for an interpreter. Finally, Salim argues that the court wrongfully forbid him from having contact with his family. Salim raised the first three issues in response to his appellate lawyer's forty-seven page no-merit report before the state appellate court. After consideration of the report and Salim's response, and then conducting an independent review of the record, the Wisconsin Court of Appeals concluded in a nine-page opinion that there were no arguably meritorious appellate issues and summarily affirmed the judgment of conviction.

         A federal court is authorized to grant habeas corpus relief to a state prisoner only upon a showing that "he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The granting of such relief by federal courts is further limited by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which "significantly constrain any federal court review of a state court conviction." Searcy v. Jaimeti, 332 F.3d 1081, 1087 (7th Cir. 2003). Under AEDPA, habeas corpus relief for persons serving sentences imposed by state courts may not be granted on any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the United States Supreme Court or (2) resulted in a decision that 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).

         Salim alleges his current conviction and sentence resulted from the ineffective representation provided by his trial attorney in violation of his Sixth Amendment right to the effective assistance of counsel. An ineffective assistance claim requires that the petitioner show his counsel's performance was deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466U.S. 668 (1984). First, Salim contends that his attorney should have moved to suppress clothing Officer Jutiki X found in the trunk of Salim's car after he was arrested. The Wisconsin Court of Appeals concluded Salim's claim failed because there were no arguable grounds to suppress the evidence: "Because the police found the stolen clothing when they were conducting a lawful inventory search of Salim's car incident to his arrest and the subsequent towing of his vehicle, there would be no grounds for moving to suppress the items found in the car. There would be no arguable merit to this claim." (ECF No. 1 at 26.)

         Next, Salim alleges trial counsel was ineffective for failing to move to dismiss the burglary charge. He claims that he cannot be charged with burglary for entering and taking items from his own home. But Wisconsin defines burglary as entering a dwelling without the consent of the person in lawful possession. Wis.Stat. § 943.10(1 m)(a). At the time of the burglary, Salim's ex-wife, not Salim, was the person in lawful possession of the dwelling. The Wisconsin Court of Appeals again found that there is no arguable merit to this claim:

Salim contends that his trial lawyer should have moved to dismiss the burglary charge because he cannot be charged with burglary for entering his own living quarters. Salim is wrong on the facts. He was no longer living with [his ex-wife] when he burglarized her home. To the contrary, he had been expressly ordered by the circuit court to stay away from [his ex-wife], to stay away from her residence and to stay away from her place of employment. Moreover, his defense to the charge was that he did not go to [his ex-wife's] house on the day of the burglary. Because the argument he currently raises was meritless and ...

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