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Camp v. Symdon

United States District Court, W.D. Wisconsin

March 30, 2017

DENNIS VAN CAMP, Petitioner,
v.
DENISE SYMDON, [1]Respondent.

          OPINION & ORDER

          JAMES D. PETERSON District Judge

         Petitioner Dennis Van Camp, a former state of Wisconsin prisoner currently on extended supervision, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Van Camp challenges state court convictions in Brown County Case No. 2008CF694 for possession of cocaine with intent to deliver, second or subsequent offense; possession of an electric weapon; possession of cocaine, second or subsequent offense; and possession of drug paraphernalia in Brown County Case No. 2008CF694. Van Camp contends that appellate counsel was ineffective by failing to argue: (1) substantive aspects of entrapment law; (2) the proper jury instruction on entrapment; (3) the admissibility and chain of custody of the cocaine; and (4) whether Van Camp actually violated the statute against possession of an electric weapon. The petition is fully briefed and ready for decision. After considering the parties' submissions and state court records, I conclude that Van Camp has failed to show that the Wisconsin Court of Appeals unreasonably applied federal law in analyzing the first three grounds. I conclude that Van Camp's claim about the electric weapon charge is procedurally defaulted, and that the claim would be meritless even if he had properly raised it to the Wisconsin courts. Therefore, I will deny the habeas petition.

         FACTS

         The following facts are drawn from the petition, briefs, and state court records.

         A. Events underlying the conviction

         In July 2008, petitioner Dennis Van Camp was the subject of a “reverse sting” operation by the Brown County Drug Task Force. A confidential informant for the task force contacted Van Camp about purchasing a quarter kilogram of cocaine. At Officer Michael Wanta's instruction, the informant set up a meeting with Van Camp in a Green Bay parking lot.

         Wanta provided the informant with a package containing approximately 250 grams of cocaine and equipped him with a recording device. The police put six pieces of cocaine from a previous drug conviction together to create a 250-gram “block, ” which is the weight Van Camp had agreed to purchase. The informant drove to meet Van Camp, waited ten minutes for Van Camp to arrive, and then entered the passenger seat of Van Camp's SUV. Van Camp provided $5, 500 in cash in exchange for the cocaine. Immediately after the informant completed the deal and left the SUV, police arrested Van Camp. Police recovered the block of cocaine in Van Camp's SUV, and also discovered five small baggies of what field tests determined was cocaine, which would be confirmed by tests at the state crime lab. Officers weighed the baggies in the field and recorded the weights as 1.8 grams, 3.38 grams, 1.07 grams, 1.29 grams, and 1.19 grams. The state crime lab recorded the weights as .94 grams, 1.04 grams, 1.02 grams, 1.06 grams, and 1.18 grams, respectively.

         Police also recovered an electric weapon from Van Camp's SUV. Van Camp was charged with possession of more than 40 grams of cocaine with intent to deliver, possession of cocaine, possession of an electric weapon, and possession of drug paraphernalia.[2]

         B. Trial

         At the jury trial, the government introduced the block of cocaine and the cocaine baggies, among other evidence. Van Camp challenged this evidence at trial. He sought to discredit both the block and baggies of cocaine on chain-of-custody and authenticity grounds, arguing that the cocaine at trial was not the substance he was sold. He asserted that the texture of the cocaine block was different than what he was sold and that six pieces of cocaine could not be combined into one block. Also, the cocaine weighed 252 grams when first obtained by the government in 2004, but after the sting operation, the cocaine weighed about 249 grams. Similarly, Van Camp argued that the cocaine baggies at trial could not be the baggies recovered from his SUV because of the documented weight differences.

         Van Camp sought a custom jury instruction regarding the importance of the chain-of-custody for a drug like cocaine, arguing that one piece of cocaine could be scientifically indistinguishable from another piece, and one must depend on visual descriptions and weights to distinguish them. The trial court rejected the requested instruction but permitted Van Camp to argue the chain of custody to the jury, and his trial counsel argued about the importance of the weight differences in closing arguments.

         Van Camp also relied on an entrapment defense. He asserted that the informant, acting as a government agent, contacted him excessively via telephone. Van Camp argued that he initially did not want to purchase the cocaine, but the informant convinced him to do it. Van Camp used his phone records to show that the informant called him several times, which Van Camp contended showed that he was not predisposed to purchase cocaine. The records were admitted into evidence and published to the jury, but the court declined to send the records to the jury during deliberations. The trial court submitted the question of entrapment to the jury using Wisconsin's pattern jury entrapment instruction.

         Van Camp also sought the admission of his medical records to show that he had been shot in the head approximately ten years prior, in an effort to show that his hearing was compromised, and that he had temporary “swimmer's ear” in his left ear, which also hampered his hearing and cognitive functioning. The trial court deemed the medical records irrelevant, but allowed Van Camp to testify regarding his hearing loss and swimmer's ear and its impact on the night of the cocaine deal. A doctor treating Van Camp's ear also testified.

         The jury found Van Camp guilty on all counts.

         C. Direct appeal

         On direct appeal, counsel's argument and the court of appeals analysis focused on whether the trial court abused its discretion when it denied Van Camp's request for a special chain-of-custody jury instruction. The court of appeals determined that the trial court did not abuse its discretion in refusing to instruct the jury on chain of custody in the manner requested by defense counsel. Rather, the court of appeals determined that the trial court adequately instructed the jury with the instruction on the state's burden of proof, beyond a reasonable doubt on every element including that actual cocaine was possessed. It also noted that the trial court allowed defense counsel to argue the chain-of-custody issue to the jury. Van Camp's petition for review to the Wisconsin Supreme Court was denied.

         D. Postconviction motion

         Following Van Camp's unsuccessful appeal, he filed a motion for postconviction relief on the basis of ineffective assistance of counsel. Van Camp argued that appellate counsel was ineffective for focusing on the chain-of- custody instruction while failing to argue that:

• the trial court gave the incorrect entrapment jury instruction;
• the state did not prove that Van Camp was predisposed to commit the crime;
• the telephone logs showed that the government excessively induced Van Camp as a matter of law;
• the medical records would have shown Van Camp did not have intent to deliver;
• the chain of custody of the cocaine was deficient and therefore inadmissible; and
• the cocaine in Van Camp's possession was improperly admitted because there were discrepancies in reported weights.

         The trial court dismissed the postconviction motion without a hearing.

         E. Appeal of postconviction motion

         Van Camp appealed the dismissal, raising the following ineffective assistance issues about entrapment: (1) he was not predisposed to purchase cocaine, because the medical records showed that he needed the cocaine for personal use, not for dealing, and he would not have purchased the cocaine if the criminal informant had not urged him over the phone; (2) the trial court wrongly used a subjective test of entrapment rather than an objective test; and (3) the trial court issued an outdated entrapment jury instruction that misstated the defendant's burden of proof.

         Van Camp also argued that appellate counsel was ineffective for not properly challenging the admissibility and chain of custody of the cocaine. Van Camp argued the cocaine should not have been admitted because the prosecution could not reliably establish the chain of custody linking the substance at trial to the substance sold to him. Similarly, Van Camp also argued the cocaine baggies should not have been admitted because of the discrepancies between the weights measured by the officers compared to the weights established by the crime lab.

         The court of appeals rejected all of Van Camp's claims of ineffective assistance of counsel. On the issue of predisposition, the court reasoned that the jury heard the testimony relating to the contents of the phone calls, saw the phone records and summaries of the phone records, and heard Van Camp's testimony about his medical condition, but that the jury, by virtue of its guilty verdict, weighed the evidence and rejected the notion that Van Camp was not predisposed to purchase cocaine. The court rejected Van Camp's proposed objective test for entrapment, and determined that Wisconsin uses a subjective test. Further, the court determined that the trial court used the current pattern instruction on entrapment, the pattern instruction was a correct reflection of the law, and the judge correctly instructed the jury on Van Camp's burden for showing entrapment. Finally, the court rejected Van Camp's argument that the cocaine ...


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