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Howlett v. Richardson

United States District Court, E.D. Wisconsin

January 30, 2017



          William C. Griesbach, Chief Judge

         Petitioner 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.

         I. Background

         The 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.

         II. Analysis

         Under 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)).

         A. Ineffective Assistance of Trial Counsel

         The 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 explanation:

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 Amendment.'
“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).

         1. Victim's Attendance Records

         The 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 ...

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