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Jorgensen v. Wall

United States District Court, E.D. Wisconsin

January 27, 2017

CHAD A. JORGENSEN, Petitioner,
EDWARD F. WALL, Respondent.


          C. N. Clevert, Jr. U.S. District Judge

         After denying without prejudice Chad Jorgensen's motion for appointment of counsel, the court gave Jorgensen additional time to file a reply brief. To date, Jorgensen has not filed a reply or otherwise supplemented his earlier pleadings. Hence, the court will proceed to rule on the merits of the pending 28 U.S.C. § 2254 petition, which challenges his November 25, 2008, judgment of conviction in Langlade County on one count of solicitation to commit first-degree intentional homicide. State v. Jorgensen, Langlade County Circuit Court, Case No. 2008CF56. Jorgensen received a five-year sentence, with three years of extended supervision. He appealed the judgment of conviction, as well as the order denying his postconviction motion alleging ineffective assistance of counsel. The Wisconsin Court of Appeals affirmed the judgment of conviction in a June 28, 2013, per curiam decision, and the Wisconsin Supreme Court denied his petition for a writ of certiorari. Jorgensen, 2013 WI.App. 94, cert. denied, 2014 WI 3. Although Jorgensen was discharged from the custody of the Wisconsin Department of Corrections in March of 2016, he was in custody when his petition was filed. Thus, he satisfied the jurisdictional requirement of § 2254(a) and there are sufficient collateral consequences to defeat a finding of mootness.

         Briefly, Jorgensen and his wife Kelly divorced following ten years of marriage. After Jorgensen failed to pay a $60, 000 property settlement, he was sentenced to 90 days in jail commencing January 1, 2008. While in jail, Jorgensen met Ryan Becker (a/k/a Andrew Conley) - a man with 16 prior convictions and five pending criminal charges. At some point Becker reported to jail officials that Jorgensen wanted to have his wife killed. Becker wore a wire in exchange for being released from jail and he recorded two conversations with Jorgensen outside of the jail on March 22 and 26, 2008.

         At trial, the district attorney questioned Becker and Jorgensen using various portions of the transcripts of the recordings. The recordings were not played to the jury; however, the transcripts of the recorded conversations were prepared by the defense, introduced into evidence, and provided to the jury. Additionally, an employee of Jorgensen's cleaning business, Kevin Zarda testified that Jorgensen complained “all the time about how much he owed Kelly, and his alimony payments, and child support payments.” Zarda said that Jorgensen talked about wishing Kelly was dead and that he should have someone kill her. Another employee, Matthew Sanford, who had two prior convictions, testified that Jorgensen said he wished Kelly would die, asked about purchasing a gun, and told him that Becker would be willing to kill Kelly. However, on cross-examination, Sanford admitted that he gave a prior statement to an officer that he never thought Jorgensen was serious about having Kelly killed. Finally, Kelly testified that Jorgensen told her “you better watch your back, or watch over your shoulder, ” and that she “might not wake up in the morning.”

         Jorgensen took the witness stand, and testified that he never solicited Becker to murder his wife, never offered Becker anything to kill Kelly (cash, a vehicle, or lifetime job), and never provided Becker with a firearm. Indeed, he testified that he had no intention that Kelly be harmed. Moreover, Jorgensen admitted that he thought Becker wanted to kill Kelly and that he never did anything about it. According to Jorgensen, he was just joking with Becker and that “all of this was just talk.”

         The trial court limited defense counsel on cross-examination. In the recorded conversations, Becker indicated he would rather commit suicide than return to prison. Becker testified that he was not serious; although, he made a suicide attempt while in jail in March 2008. The trial court concluded that the attempt was not probative of Becker's bias or motivation for falsifying testimony, inflammatory in nature, and extremely prejudicial. Similarly, defense counsel wanted to introduce evidence that Kelly called the police on 19 occasions but never reported that Jorgensen threatened her life. The court allowed counsel to ask Kelly whether she ever reported threats to the police but determined that the prior incidents or police reports were irrelevant and would confuse the jury.

         Additionally, the trial court granted defense counsel's request for an entrapment instruction. However, counsel never mentioned the entrapment instruction in closing. Instead, he argued that Jorgensen did not commit the crime. Rather, Becker contacted the detective to get out of jail, and controlled the conversations with Jorgensen even after Jorgensen “called it off.”

         After the jury returned a guilty verdict, Jorgensen filed a postconviction motion for a new trial, alleging ineffective assistance of counsel. His trial attorney, James Connell, testified at the postconviction hearing regarding the use of the transcripts, the entrapment discussion, and the cross-examination of Becker and Jorgensen. The trial court denied Jorgensen's postconviction motion finding that trial counsel was not ineffective and had made rational decisions about trial strategy. Trial counsel testified that he had prepared transcripts of Jorgensen's recorded discussions with Ryan Becker for purposes of cross examination, but there was extraneous information on the recordings from which the transcripts were prepared and parts of the recordings were difficult to hear. Some parts of the recordings may have been detrimental to Jorgensen's case.

         Under AEDPA, “a federal habeas petition may be granted only if a state court's ruling on a federal constitutional question ‘was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court, ' or ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'” Makiel v. Butler, 782 F.3d 882, 896 (7th Cir. 2015) (quoting 28 U.S.C. § 2254(d)(1) & (2)). This is a difficult standard to meet and highly deferential. Id. (citing Cullen v. Pinholster, 131 S.Ct. 1388, 1398, 179 L.Ed. 557 (2011). Further, this deferential standard of review applies only to claims that were actually adjudicated on the merits in state court proceedings. Id.. “The operative decision under review is that of the last state court to address a given claim on the merits.” Id.

         Jorgensen first attacks the use of selected excerpts from the transcripts of recorded conversations on the grounds that it deprived him of a fair trial by distorting the meaning and tenor of his conversations with Becker, and that the rules of evidence in Wisconsin (“best evidence rule”) would have favored the admission of the audio recordings to supplement the transcripts. Along the same lines, Jorgensen maintains that counsel was ineffective in failing to require the state to play the recordings, and that the inaccurate transcription of an “exculpatory and critical part” of the conversation requires a new trial in the interest of justice. The court turns to the use of the selected excerpts from the transcripts of Jorgensen's recorded conversations.

         Jorgensen's brief does not include citations to the record or the portions of the transcripts to which he objects. Nevertheless, he raised these issues in his postconviction motion and on appeal. Jorgensen maintained that the jury was left to discern his intent from “snippets of his conversations with Mr. Becker, read into evidence from a written transcript.” In rejecting these claims, the trial court noted that the jury requested and received copies of the transcripts prepared by the defense and that defense counsel never objected to the use of the transcripts at trial. On appeal, the Wisconsin Court of Appeals ruled as follows:

Jorgensen's argument that using excerpts of the transcripts denied him a fair trial fails for several reasons. First, regarding any defects in the transcripts or the manner in which Becker read from them, the jury was provided with a copy of the transcripts and could read for itself who was speaking and could see the blanks left by the transcriber. While there were other errors in the transcript, Jorgensen exaggerates their magnitude as they do not relate to the most damning part of the conversation. The State's case did not turn on the inaccuracies in the transcripts, and the prosecutor did not rely on them in making his case. In addition, Jorgensen's trial counsel did not object to the State's use of the transcripts at trial. Therefore, any challenge to the use of the transcripts must be brought in the context of ineffective assistance of counsel.
Jorgensen requests that this court grant a new trial in the interest of justice because the real controversy was not fully tried. Use of the written transcripts in lieu of the recordings themselves does not prevent the controversy from being fully tried. Our review of the recordings supports the finding that Jorgensen was serious about having Kelly killed and solicited Becker to kill her for $10, 000.

Jorgensen, 2013 WI.App. 94, ¶¶ 13, 14. In his briefing before this court, Jorgensen concedes that “[a]ny challenge to the use of the transcripts must be brought in the context of ineffective assistance of counsel. If Jorgensen intended to raise this as a separate claim, the Wisconsin Court of Appeals' decision was not contrary to or an unreasonable application of clearly established law and did not rest on an unreasonable determination of the facts. Further, Jorgensen's reference to the “best ...

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