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Plank v. Symdon

United States District Court, E.D. Wisconsin

March 21, 2017

RICHARD C. PLANK, Petitioner,



         Richard C. Plank petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting that his state court conviction and sentence in Winnebago County Circuit Court were imposed in violation of the Constitution. Plank was convicted of two counts of battery and one count of disorderly conduct and received consecutive sentences of three years of imprisonment, ninety days in jail, and four years of extended supervision.

         Plank was charged with battering his live-in girlfriend, Sandra Ashauer, by beating her on the head and face as well as slicing her leg with a knife. Prior to trial, Plank was represented by Attorney Kate Seifert. However, less than a week before trial, Seifert was allowed to withdraw. Plank represented himself at a bench trial with Seifert as stand-by counsel. Testifying at trial were Ashauer, four police officers, and Plank. Plank's defense was that Ashauer cut herself after he announced he was moving to Duluth, and that he did not break Ashauer's nose because she had no facial bruising or swelling. At the end of the trial, the trial judge ruled immediately and found Plank guilty on all counts. In pertinent part, the trial judge stated:

[I]t's a test of credibility of witnesses and also the evidence that supports that testimony. And the complaining witness, Miss Ashauer, has offered some testimony that essentially you beat her and you cut her and bruised her, and the pictures and testimony that she gave in the courtroom I find substantiate that. And I find her testimony to be credible, believable, and I also find it to be that standard of beyond a reasonable doubt. I'm satisfied that you beat her and you broke her nose and that you caused numerous bruises to her arm, her thigh, her face, the genital area. And as a second count - and the chin. And also as a second count, I would also find that there's evidence beyond a reasonable doubt that you in some fashion took an implement - and I realize that an implement was not found - and cut her to the tune of needing 18 stitches. And I'm not certain exactly how much blood there should or should not have been, but I am satisfied that those elements have been met, that that was without consent or permission, it was substantial. I find your testimony to be incredible, at best. That means not believable. The fact that your evidence or your testimony is that this is a pre-existing broken nose, this was a self-inflicted knife wound, that you acted as far as your foot fight with her in self-defense, and the bruises were photoshopped to make them look like more severe than they are I find to be incredible, not believable . . . .

(Doc. 20 Ex. T at 133-34.)

         Plank filed a post-convictiion motion alleging ineffective assistance of counsel by Seifert, and chose to be represented by counsel again. New counsel, Attorney Matthew Goldin, was appointed. Thereafter, Seifert testifed at a Machner[2] hearing regarding the ineffective-assistance-of-counsel claim. At the end of the Machner hearing the court denied Plank's motion and proceeded immediately to sentencing. In denying the motion, the trial judge stated in pertinent part: “Mr. Plank is not a credible witness. I don't believe his testimony. I believe Miss Seifert that she did share discovery with him.” (Doc. 20 Ex. V at 42.) The trial judge found that Seifert had committed no deficient conduct and that there was no reasonable probability that the outcome of the trial was affected in any way-the alleged ineffective-assistance issues were “minimal, at best, as far as effecting [sic] the outcome of this case.” (Id.)

         Plank appealed, but counsel filed a no-merit brief, to which Plank responded. The Wisconsin Court of Appeals found no meritorious issues and dismissed the appeal. Afterward, Plank unsuccessfully sought review in the Supreme Court of Wisconsin. The pending habeas petition followed.


         A petition seeking a writ of habeas corpus may not be granted as to any claim that was adjudicated on the merits in state court unless the resolution of that claim “gave rise to a decision that was contrary to, or involved an unreasonable application of, clearly established” U.S. Supreme Court law or “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)(1), (2). A state-court decision is “contrary to” Supreme Court law if the state court arrived at a conclusion opposite that reached by the Supreme Court on a question of law or if the state court decided the case differently than the Supreme Court on facts that are materially indistinguishable. Williams v. Taylor, 529 U.S. 362, 405-06, 413 (2000). A state court decision is an “unreasonable application” of Supreme Court law if the state court identified the correct governing legal principle but unreasonably applied that principle to the facts of the case. Id. at 407-09, 413. Review under § 2254(d)(1) (the “contrary to” or “unreasonable application” provision) is limited to the record before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, 563 U.S. 170, 180-82 (2011). A state court's fact determinations are presumed correct and a petitioner must rebut the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

         A federal court analyzing the “unreasonable application” prong of § 2254(d)(1) “should ask whether the state court's application of clearly established federal law was objectively unreasonable.” Williams, 529 U.S. at 409. This standard is a “substantially higher threshold” than whether the state court's determination was incorrect. Schriro v. Landrigan, 550 U.S. 465, 473 (2007); see Cullen, 563 U.S. at 182 (stating that the standard of § 2254(d) is difficult to meet and highly deferential, demanding that state-court decisions receive the benefit of the doubt). ”[A] state prisoner must 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 fair-minded disagreement.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011).

         The relevant state court decision is that of the last court to review the issue. Lucas v. Montgomery, 583 F.3d 1028, 1030 (7th Cir. 2009). The standard of review in § 2254(d) applies even where the state court issued only a summary denial. Cullen, 563 U.S. at 187. In reviewing a summary denial, the habeas court must determine what arguments or theories could have supported the state court's decision and ask whether fair-minded jurists could disagree that those arguments or theories are inconsistent with a prior decision of the U.S. Supreme Court. Id. at 188.

         A state prisoner must have presented his claim through a complete round of state-court review or else be deemed to have committed procedural default. Brown v. Brown, 847 F.3d 502, 509 (7th Cir. 2017). This court may examine the merits of a procedurally defaulted claim only if the petitioner (1) demonstrates cause for his procedural error and prejudice as a result, or (2) shows that the failure to consider the claim will result in a fundamental miscarriage of justice. Jones v. Calloway, 842 F.3d 454, 461 (7th Cir. 2016). “Cause” means an objective factor, external to the defense, that impeded or precluded the petitioner's ability to pursue the claim in state court. Johnson v. Foster, 786 F.3d 501, 505 (7th Cir. 2015). “Prejudice” means an error that “so infected the entire trial that the resulting conviction violates due process.” Id.; see Salberg v. United States, 969 F.2d 379, 383 (7th Cir. 1992). The miscarriage-of-justice exception requires a petitioner to convincingly establish actual innocence through new, reliable evidence (meaning evidence not presented at trial rather than newly discovered). Jones, 842 F.3d at 461 (citing McQuiggin v. Perkins, 133 S.Ct. 1924, 1929 (2013)). Such actual-innocence arguments are rarely successful, as the petitioner must persuade the court that “‘in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.'” Coleman v. Lemke, 739 F.3d 342, 349 (7th Cir. 2014) (quoting McQuiggin, 133 S.Ct. at 1928). The court must consider all of the evidence, regardless of its admissibility, and “‘make a probabilistic determination about what reasonable, properly instructed jurors would do.'” Jones, 842 F.3d at 461.[3]


          In his petition, Plank asserted four grounds for relief; the court ordered a response to those grounds. Although the court said it would accept Plank's supplements that had been filed between the opening of this case and issuance of its screening order, the court meant that it would consider them in connection with the claims in the petition; the petition was not amended. Thereafter, Plank's filings in this proceeding raised additional possible issues. (See, e.g., Doc. 24 at 1, 4, 6, 9 (discussing, e.g., a missing written statement by Ashauer, the effectiveness of appellate counsel, Seifert's alleged failures to investigate or obtain an expert opinion; Doc. 31 (asking the court to consider the merits of a November 2015 motion to vacate that he filed in the state-court criminal case).) However, again, the petition was never amended, and attempts to add other claims after approximately February 2014, would have been barred by the one-year statute of limitations. See Rodriguez v. United States, 286 F.3d 972, 980-82 (7th Cir. 2002) (finding that an amendment to a motion under 28 U.S.C. § 2255 relates back to the original petition only if the untimely claim arises from the same set of facts as a timely claim rather than from separate conduct). Therefore, this court will address only the four grounds for relief set forth in the petition.

          A. Alleged perjury

         Plank asserts that Ashauer and two police officer witnesses committed perjury and that the assistant district attorney presented that testimony improperly without correction. The prosecution's use of false evidence or failure to correct false evidence at trial constitutes a denial of due process. Napue v. Illinois, 360 U.S. 264, 269 (1959). “The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Id. To prove a violation of Napue, Plank must show (1) that false testimony was given at trial, (2) that the prosecution knew or should have known that the testimony was false, and (3) a likelihood that the false testimony affected the verdict. United States v. Freeman, 650 F.3d 673, 678 (7th Cir. 2011).

         Plank faces two problems with this claim. First, he procedurally defaulted the claim by not raising it in a Wis.Stat. § 809.30 post-conviction motion before the trial court. Under § 809.30(2)(h), a motion for post-conviction relief in the trial court is required regarding any issue not raised at trial. Plank filed a motion for post-conviction relief alleging ineffective assistance of counsel; but the motion did not argue that the prosecutor, Albrecht, or any other state representative committed or condoned perjury. (See Doc. 20 Ex. E.) The first time that Plank raised the claim was in his responses to appellate counsel's no-merit brief on appeal (see Doc. 20, Ex. G at 1-5), and that was too late.

         Additionally, Plank provides no basis for a finding that there was cause for the default. Moreover, he cannot establish prejudice or a miscarriage of justice because of his second problem: the claim fails on the facts. Plank's contention that Ashauer lied on the stand is a continuation of his theory at trial that his version of events, rather than Ashauer's, should have been believed. Ashauer testified that she had been punched in the face and suffered a broken nose, but Plank argues that photographs show that her face was “pristine.” Further, Ashauer testified that Plank cut her while she lay in bed, where no blood was found, but Plank contends she cut herself in the bathroom.

         Ashauer's and Plank's versions of the facts were presented to the trial judge, who found Ashauer, not Plank, credible. Although Plank continues to dispute Ashauer's testimony, the trial judge found Ashauer's testimony to be the truth, and the judge's fact determinations are presumed correct. § 2254(e)(1). Mere conflicting testimony or other evidence does not rebut that presumption by clear and convincing evidence; otherwise virtually no findings of fact would stand. Further, Plank presents nothing indicating that even if Ashauer lied, the prosecutor knew or should have known of any falsity.

         Regarding the officers' testimony, Plank asserts that Officer Albrecht lied in a report wherein he stated that he overheard Ashauer tell a paramedic that Plank injured her because he was jealous. (See Doc. 1 at 7; Doc. 21 at 5.) Also, Plank argues that Albrecht lied about seeing muscle in Ashauer's wound and blood-soaked clothing and towels in the bathroom. (Doc. 21 at 21.) In addition, Plank contends that Officer Oleszak testified falsely regarding Plank's toe being cut. (Id.) However, Plank has failed to establish that the officers' testimony was intentionally false rather than the product of their recollections. And importantly, the matters of which Plank complains concern immaterial points; there is no likelihood that any of this testimony affected the verdict. Ashauer's statement to paramedics does not appear to have been part of the evidence at trial. Whether the cut on Ashauer's leg affected muscle as well as fatty tissue could not have affected the verdict. Medical records concerning the cut were admitted, photos appear to have shown Ashauer's wound and the bloody underwear in the bathroom, and testimony covered the amount of blood in the residence and on Plank's toe. (See Doc. 20 Ex. T at 13-14 (lack of blood in the bedroom).) Thus, the trial judge could determine the facts for himself; the particular testimony challenged by Plank added little to nothing.

         In his brief, Plank argues that the prosecutor falsely stated that page six of Dr. Duscher's report showed that Ashauer suffered a minimally displaced nasal bone fracture. (Doc. 21 at 16.) However, the prosecutor's direction to the judge regarding where to find information in the report did not constitute evidence. And even if that direction was incorrect (as that information appears to this court to be on pages ...

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