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Sennholz v. Strahota

United States District Court, E.D. Wisconsin

May 15, 2017

EVERETT M. SENNHOLZ, Petitioner,
v.
DON STRAHOTA, Respondent.

          DECISION AND ORDER DENYING PETITION FOR RELIEF UNDER 28 U.S.C. § 2254

          William C. Griesbach, Chief Judge.

         Petitioner Everett Sennholz 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. Sennholz was convicted in the Kenosha County Circuit Court on four counts of first degree sexual assault of a child under thirteen and was sentenced to 20 years imprisonment. The court screened the petition on October 3, 2016 and allowed Sennholz to proceed on two claims: (1) ineffective assistance of trial counsel for failure to object to a witness' testimony concerning the credibility of the complaining witness; and (2) ineffective assistance of trial counsel for failure to object to the State's allegedly improper closing argument. The case is now before the court for resolution. For the reasons discussed herein, the petition will be denied and the case dismissed.

         BACKGROUND

         Sennholz was convicted of sexually assaulting his granddaughter E.M. on four different occasions when she was between the ages of eight and twelve. Although she did not report the abuse for more than twenty years, E.M. testified she ultimately reported the crimes after she learned that Sennholz was potentially abusing another family member. The State's case did not rely solely upon E.M. or other witnesses' testimony, but also a note E.M. wrote to her friend when she was fourteen years old in which she recounted the abuse and a conversation E.M. secretly recorded with Sennholz in 2010 in which he seemingly admitted to the abuse. In his defense, Sennholz testified that the allegations were false and that his statements to E.M. were just to get her off his back. After a four-day trial, the jury returned a guilty verdict on all four counts.

         Sennholz filed a motion for postconviction relief in the state circuit court in which he claimed his trial counsel was ineffective on nine different grounds. The circuit court denied relief, and Sennholz appealed. ECF Nos. 1-3, 1-4. The Wisconsin Court of Appeals rejected Sennholz's arguments and affirmed the judgment. ECF No. 1-1. The Wisconsin Supreme Court denied Sennholz's petition for review. ECF No. 1-2. Sennholz's federal habeas petition pursuant to § 2254 followed and he was allowed to proceed on two claims: (1) ineffective assistance of trial counsel for failure to object to a witness' testimony concerning the credibility of the complaining witness; and (2) ineffective assistance of trial counsel for failure to object to the State's allegedly improper closing argument.

         LEGAL STANDARD

         Sennholz's petition is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254. Under AEDPA, habeas corpus relief for persons serving sentences imposed by state courts may not be granted on any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the United States Supreme Court; or
(2) resulted in a decision that 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). A state court decision is “contrary to . . . clearly established Federal law” if the court did not apply the proper legal rule, or, in applying the proper legal rule, reached the opposite result as the Supreme Court on “materially indistinguishable” facts. Brown v. Payton, 544 U.S. 133, 141 (2005). A state court decision is an “unreasonable application of . . . clearly established Federal law” when the court applied Supreme Court precedent in “an objectively unreasonable manner.” Id.

         This is, and was meant to be, a difficult standard to meet. Harrington v. Richter, 562 U.S. 86, 102 (2011). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (internal citation and quotation marks omitted).

         ANALYSIS

         Sennholz has raised two arguments suggesting that his trial counsel was ineffective. Ineffective assistance of counsel deprives a defendant of his Sixth Amendment right to counsel and is therefore a proper ground for relief under 28 U.S.C. § 2254. To establish ineffective assistance of counsel, a defendant must show (1) counsel's representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that counsel's errors affected the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 687 (1984).

         When § 2254(d) applies, however, the court must instead determine “whether there is any reasonable argument that counsel satisfied Strickland's deferential standard, ” not whether counsel's actions were reasonable. Harrington, 562 U.S. at 105. As such, rather than showing that “he would have satisfied Strickland's test if his claim were being analyzed in the first instance, ” a habeas petitioner must show that the state court applied Strickland in an objectively unreasonable manner. Bell v. Cone, 535 U.S. 685, 698-99 (2002). Judicial scrutiny of counsel's performance under the standards created by Strickland and § 2254(d) is “highly deferential.” Harrington, 562 U.S. at 88. Adding AEDPA's additional ...


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