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Ohlinger v. Pollard

United States District Court, W.D. Wisconsin

April 6, 2017

JOHN DAVID OHLINGER, Petitioner,
v.
WILLIAM POLLARD, Warden, Dodge Correctional Institution, Respondent.

          OPINION AND ORDER

          WILLIAM M. CONLEY DISTRICT JUDGE

         Petitioner John David Ohlinger filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging a judgment of conviction in Racine County Case No. 02CF224 for attempted first-degree sexual assault of a child and child enticement, each as a persistent child sex offender. The state filed an answer, along with records from the relevant state court proceedings, and both parties have submitted briefing, making the petition ripe for decision. Having reviewed the petition, the parties' arguments and the relevant state court decisions, the court concludes that Ohlinger's petition must be denied.

         BACKGROUND[1]

         A. Investigation and Charges

         A sting operation by law enforcement caught Ohlinger using the internet to solicit sex with what he thought was a twelve-year-old girl. In fact, Ohlinger had been communicating by internet and phone with two police officers, one posing as an adult woman with a 12-year old daughter, and the other posing as the daughter. Ohlinger was originally charged with conspiracy to commit first-degree sexual assault of a child, conspiracy to commit child enticement by sexual contact, attempted first-degree sexual assault of a child, and child enticement, each as a persistent child sex offender. See Wisconsin v. Ohlinger, Racine County Case No. 2002CF224.

         After cycling through several appointed attorneys, Ohlinger insisted on representing himself. He then moved to dismiss all charges on grounds that the warrantless recording of his conversations with the officers posing as mother and daughter violated Wisconsin's Electronic Surveillance Control Act. He also moved to dismiss the conspiracy charges on ground that the undercover officers were merely feigning participation in a criminal scheme. The court rejected Ohlinger's arguments regarding the surveillance, concluding that the recording was not an “intercept” subject to the surveillance statute. However, the state agreed to drop the conspiracy charges, and the court granted Ohlinger's motion to dismiss those charges. The state then filed an amended complaint, which included only the attempt charges.

         B. Court Trial

         Shortly before the scheduled trial date, Ohlinger asserted that he was no longer competent to represent himself, and the court appointed Attorney Richard Hart, who had been acting as his stand-by counsel, to represent him. At the defense's request, the court also ordered that Ohlinger undergo a psychological evaluation to determine if he was competent to stand trial.

         During a June 27, 2006 hearing, the court determined that Ohlinger was competent to stand trial. At the same hearing, Ohlinger waived his right to have his case heard by a jury.

         The court then conducted a three-day bench trial beginning on June 28, 2006. In a 16-page written decision issued July 3, 2006, the court summarized the facts adduced at trial, including that Ohlinger had created a web page discussing his interests in pedophilia and in finding other people with whom he could share his interest. (See dkt. #28-2 at 48-72.) After learning about the website, the Wisconsin Department of Justice contacted Ohlinger, with two DOJ agents posing as a mother and minor daughter. Ohlinger had numerous telephone, email and instant messaging conversations with the agents, which were recorded and presented at trial. During the conversations, the agents and Ohlinger made a plan to meet at a truck stop in Racine, where Ohlinger would take them to New Orleans in his truck. At the truck stop, Ohlinger was arrested by DOJ agents.

         The state court found Ohlinger guilty of attempted first-degree sexual assault of a child and child enticement, each as a persistent child sex offender. He was sentenced on July 25, 2006.

         The charge of child enticement as a persistent child sex offender carried a mandatory sentence of life without possibility of supervised release. The court imposed the life sentence, as well as a concurrent sentence of 40 years' initial confinement and 20 years' extended supervision on the attempted first-degree sexual assault charge. (See dkt. #28-1.)

         C. Post-conviction Motion and Direct Appeal.

         Ohlinger filed a motion for post-conviction relief, reasserting his claims that the interception of his internet and telephone communications with law enforcement officers violated the Wisconsin Electronic Surveillance Control Act (“WESCA”). (Dkt. #28-2 at 64.) The trial court denied that motion, concluding it was not error to admit evidence of the recordings because they were obtained in compliance with WESCA. Even if obtained in violation of WESCA, the court found other, overwhelming evidence supporting the conviction, such as the officers' testimony of their communications with Ohlinger. (Id. at 64-69.)

         Represented by a state public defender, Ohlinger appealed that judgment and the order denying postconviction relief. In his opening brief, he again raised the argument that the government's acquisition of the communications between Ohlinger and the agents violated WESCA, requiring suppression under that statute and the Fourth Amendment. (See dkt. #28-2 at 16.) The Wisconsin Court of Appeals rejected Ohlinger's arguments, affirming his conviction on both counts after concluding that the circuit court properly denied Ohlinger's motion to suppress because the interceptions of the communications did not violate state law. See State v. Ohlinger, 2009 WI.App. 44, 317 Wis.2d 445, 767 N.W.2d 336. The Wisconsin Supreme Court denied Ohlinger's petition for review on September 11, 2009.

         D. Petition for Writ of Habeas Corpus Pursuant to Knight.

         Ohlinger next filed a pro se petition for a writ of habeas corpus in the Wisconsin Court of Appeals under State v. Knight, 168 Wis.2d 509, 484 N.W.2d 540 (1991), alleging ineffective assistance of counsel on three grounds: (1) his trial and appellate attorneys should have sought dismissal of the attempt charges on preclusion grounds after the conspiracy charges were dismissed; (2) appellate counsel should have argued that the intercept was unlawful under provisions of the federal wiretap law limiting the crimes for which an intercept may be authorized, as well as failing to make additional arguments for exclusion under Wisconsin's surveillance laws; and (3) appellate counsel should have argued that the investigation and prosecution of his crime resulted in denial of his right to equal protection because law enforcement was not required to get a warrant before intercepting his communications. (See dkt. #28-9.)

         The Court of Appeals again rejected Ohlinger's arguments, concluding that counsel did not err by pursuing the arguments identified by Ohlinger because each argument would have failed. See State v. Ohlinger, 2010AP1413-W (Wis. Ct. App. Feb. 10, 2011) (dkt. #28-12). Ohlinger filed a ...


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