United States District Court, E.D. Wisconsin
DECISION AND ORDER
William C. Griesbach, Chief Judge
Ronell Howlett 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. Both
sides have filed briefs. For the reasons given below, the
petition will be dismissed.
Petitioner was convicted of three counts of sexual assault of
a child under thirteen. The child in question was a
nine-year-old student, and the Petitioner was a school bus
driver. According to the state, the Petitioner induced the
student to gratify him sexually in exchange for a cell phone
and a bag of chips. The assaults occurred over a period of
three days at the end of the school year. After the
Petitioner was convicted, he filed two postconviction motions
and two appeals, none of which were successful. This federal
habeas corpus petition followed.
the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), a federal court may grant habeas relief only when a
state court's decision on the merits was “contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by” decisions
from the Supreme Court, or was “based on an
unreasonable determination of the facts.” 28 U.S.C.
§ 2254(d). Woods v. Donald, 135 S.Ct. 1372,
1376 (2015). This is an “intentionally” difficult
standard to meet. Id. “To satisfy this high
bar, a habeas petitioner is required to ‘show that the
state court's ruling on the claim being presented in
federal court was so lacking in justification that there was
an error well understood and comprehended in existing law
beyond any possibility for fairminded
disagreement.'” Id. (quoting
Harrington v. Richter, 562 U.S. 86, 103 (2011)).
Ineffective Assistance of Trial Counsel
Petitioner has raised a number of arguments suggesting that
his trial counsel was ineffective. To establish ineffective
assistance of counsel “a defendant must show both
deficient performance by counsel and prejudice.”
Knowles v. Mirzayance, 556 U.S. 111, 122, 129 S.Ct.
1411, 1419, 173 L.Ed.2d 251 (2009). This is known as the
Strickland standard, after Strickland v.
Washington, 466 U.S. 668 (1984). In addressing this
standard and its relationship to AEDPA, the Supreme Court in
Harrington v. Richter gave the following
To establish deficient performance, a person challenging a
conviction must show that ‘counsel's representation
fell below an objective standard of reasonableness.' A
court considering a claim of ineffective assistance must
apply a ‘strong presumption' that counsel's
representation was within the ‘wide range' of
reasonable professional assistance. Id. at 689. The
challenger's burden is to show ‘that counsel made
errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
“With respect to prejudice, a challenger must
demonstrate ‘a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.' ...
“‘Surmounting Strickland 's high bar
is never an easy task.' An ineffective-assistance claim
can function as a way to escape rules of waiver and
forfeiture and raise issues not presented at trial [or in
pretrial proceedings], and so the Strickland
standard must be applied with scrupulous care, lest
‘intrusive post-trial inquiry' threaten the
integrity of the very adversary process the right to counsel
is meant to serve. Strickland, 466 U.S., at 689-690.
Even under de novo review, the standard for judging
counsel's representation is a most deferential one.
Unlike a later reviewing court, the attorney observed the
relevant proceedings, knew of materials outside the record,
and interacted with the client, with opposing counsel, and
with the judge. It is ‘all too tempting' to
‘second-guess counsel's assistance after conviction
or adverse sentence.' Id. at 689;
“Establishing that a state court's application of
Strickland was unreasonable under § 2254(d) is
all the more difficult. The standards created by
Strickland and § 2254(d) are both ‘highly
deferential, ' id., at 689, and when the two apply in
tandem, review is ‘doubly' so. The
Strickland standard is a general one, so the range
of reasonable applications is substantial. 556 U.S. at 123.
Federal habeas courts must guard against the danger of
equating unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d)
applies, the question is not whether counsel's actions
were reasonable. The question is whether there is any
reasonable argument that counsel satisfied
Strickland 's deferential standard.”
562 U.S. 86, 105 (2011) (some citations omitted).
Victim's Attendance Records
victim testified that the Petitioner assaulted her on three
days “right in a row, ” which she believed was
during “the 20's of May.” The Petitioner
argues that the victim did not actually attend school for
three consecutive calendar days. In his view, his counsel
should have introduced evidence of the victim's
attendance records, which would have undercut her
credibility. The state courts concluded that such evidence
would not have made a difference. In particular, the court of
appeals quoted the trial court's observation that the
jury knew it was dealing with a young victim, who could not
be expected to have perfect recall of the dates in question.
There was nothing, in short, that turned on the statement
that the assaults occurred on three consecutive days.
Moreover, the jury could have interpreted the victim's
testimony as meaning she was assaulted on three consecutive
school days, rather than consecutive calendar days.
The court found: “Her attendance records show that she
was in attendance the following days: Wednesday, May 20,
2009; Thursday, May 21, 2009; Tuesday, May 26, 2009; and
Wednesday, May 27, 2009. School was not in ...