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Jordan v. Hepp

United States District Court, E.D. Wisconsin

May 19, 2017

JOSEPH J. JORDAN, Petitioner,


          HON. PAMELA PEPPER United States District Judge.

         Joseph J. Jordan filed a federal petition for writ of habeas corpus on April 25, 2007, challenging his 2003 conviction in Milwaukee County Circuit Court on one count of first-degree reckless homicide, three counts of first-degree endangerment, and one count of being a felon in possession of a firearm. Dkt. No. 1. On May 3, 2007, Judge Randa denied the petition because it included exhausted and unexhausted claims. Dkt. No. 4. The Seventh Circuit Court of Appeals reversed, and remanded with the instruction that the district court grant the request for stay and abeyance and allow the petitioner to return to state court to raise his unexhausted claims. Dkt. No. 19. Judge Randa entered the stay pending the exhaustion of the state law claims, and closed the case for administrative purposes. Dkt. No. 20, 27. The petitioner moved to reopen the federal habeas on December 30, 2013. Dkt. No. 33. Once the case had been reopened, Judge Rudolph Randa denied the habeas petition and declined to issue a certificate of appealability. Dkt. No. 53.

         On appeal, the Seventh Circuit affirmed the denial of the petition on the self-representation claim, but reversed and remanded on his ineffective assistance of counsel claim. Dkt. No. 67. Specifically, the court found that the prosecutor at the petitioner's state court trial had improperly vouched for a witness during closing argument. Id. at 15. The Seventh Circuit instructed this court to hold a hearing under 28 U.S.C. § 2254(e)(2), to allow the parties to present evidence as to whether the petitioner's counsel had had a strategic reason for failing to object to the prosecution's improper vouching for witness credibility. Id. On April 12, 2017, Judge William E. Duffin presided over the evidentiary hearing. Dkt. No. 82. This court has reviewed the transcript of that hearing. Dkt. No. 83. Because the petitioner's state defense counsel could not articulate with any degree of certainty that he had a strategic reason for failing to object to the vouching, and because the Seventh Circuit already has found that the petitioner suffered prejudice as a result of the defense attorney's failure to object, the court must grant the petition on the ineffective assistance of counsel claim.

         I. BACKGROUND

         The state charges arose from the shooting death of David Robison. State v. Jordan, 349 Wis.2d 524, 2013 WL 3186534 at *1 (Ct. App. June 25, 2013). The prosecution argued that on June 22, 2002, the petitioner was in a vehicle driven by Michael Blake Jones (“Blake”), when the petitioner reached over Blake to shoot and kill Robinson, who was in another car. Id. There was conflicting eyewitness testimony-one witness identified Blake as the shooter, another could not identify the shooter, yet another identified the petitioner as the shooter, and one indicated that while Blake had done the shooting, he'd conspired with someone else to blame the petitioner. Jordan v. Hepp, 831 F.3d 837, 841 (7th Cir. 2016). At trial, however, the State admitted into evidence an eight-page statement signed by Jordan. Jordan, 2013 WL 3186534 at *1. Jordan testified that he had signed the statement after law enforcement interrogated him for thirteen hours over a twenty-seven-hour period, that he maintained his innocence, and that the detectives misled him about the document he signed so that he could go home. Jordan, 831 F.3d at 841; see also Dkt. No. 47-9 at 268-341.

         Well before the trial, the court had allowed Attorney Michael J. Steinle to withdraw from representing the petitioner, and had appointed Attorney Russell D. Bohach to succeed him. Dkt. No. 47-2 at 99. The petitioner repeatedly complained about his attorney not meeting with him or investigating his leads. Id. at 99-106. On the day of the jury trial, the petitioner asked the trial court to appoint new counsel, delay the trial to allow his attorney to conduct more research, or allow the petitioner to represent himself. Dkt. No. 47-2 at 174. The court denied the first two options, and then considered whether the petitioner (who was almost illiterate) was competent to waive counsel. Jordan, 831 F.3d at 841-42. The court concluded that the petitioner was capable of representing himself, and allowed the petitioner to do so. Id. at 842. Later that same day, however, the court resumed an evidentiary hearing, this time with the petitioner representing himself. Based on things that happened during that hearing, the court changed its mind, and decided that the petitioner was not competent to represent himself at trial. Id.

         The issue before the court involves the prosecutor's comments during the closing argument of the trial. A key issue in the case was the petitioner's confession, and his argument that law enforcement officers had misled him into signing the confession. Id. During closing, the prosecutor made the following statement about the detectives who had asserted that the defendant had voluntarily confessed:

Now, the big question here is the credibility. Who do you believe? This detective and Detective Hernandez or the defendant? It boils down to that. Basically, the defendant said he never made that statement at all. Never did. No if's, ands, or buts. He never said it. Detectives Hein and Hernandez said he did. Somebody's lying. Who is it? She's going to put her whole career and her future on the line for this case? She does this everyday. She's investigating homicide cases everyday for years. Who has the most to lose based on your verdict in this case? Her or him?

         Dkt. No. 47-9 at 469. The petitioner's counsel did not object to these statements.

         The jury returned guilty verdicts on charges of first-degree reckless homicide, first degree recklessly endangering safety (two counts), and possession of a firearm. Dkt. No. 47-2 at 50-51, 109-115. The petitioner filed a post-conviction motion, claiming that (1) the trial court used the wrong standard when it found that he was not competent to represent himself at trial, (2) he was denied the effective assistance of counsel because his trial lawyer did not object when the prosecutor allegedly vouched for police detectives' credibility during closing arguments, and (3) the trial court did not enquire about what the petitioner alleged was a conflict of interest-the fact that the taxpayers paid the petitioner's trial lawyer without the petitioner's knowledge or consent. State v. Jordan, 285 Wis.2d 806, 2005 WL 1515077 at *1 (Ct. App. June 28, 2005).

         In a written order dated September 17, 2004, the state court denied the petitioner's pro se post-conviction motion. Dkt. No. 47-2 at 152-171, 174-186. The trial court also denied the petitioner's motion for reconsideration. Id. at 193. The Wisconsin Court of Appeals affirmed, finding that the trial court had applied the proper legal standards to the relevant facts, and the Wisconsin Supreme Court denied review. Jordan, 2005 WL at *1, cert. denied, 289 Wis.2d 11, 712 N.W.2d 35 (2006). The petitioner next filed a Wis.Stat. §974.06 motion for post-conviction relief, asking for a new trial on grounds not currently before this court. Jordan, 2013 WL 3186534 at *2. The Wisconsin Court of Appeals affirmed, and the Wisconsin Supreme Court denied review. Id. 2013 WL 3186534 at *13, cert. denied, 352 Wis.2d 351, 842 N.W.2d 360 (2013).

         Having exhausted his state claims, the petitioner returned to federal court on this habeas petition. Dkt. No. 33. Judge Randa denied the petition, in part because he found that the petitioner did not suffer any prejudice from his trial attorney's failure to object to the prosecutor's comments in closing argument. Dkt. No. 53 at 4. Judge Randa concluded that the trial court had advised the jurors before closing that the words of attorneys were not evidence. Id.

         On appeal, the Seventh Circuit disagreed, finding that the prosecutor's comments were “a textbook case of improper vouching.” Jordan, 831 F.3d at 847. The Seventh Circuit found that the prosecutor's comments conveyed the impression that the one of the detectives would face career repercussions for false testimony, and that the “improper vouching for the credibility of one of the detectives went to the heart of the matter.” Id. The court indicated that had defense counsel taken steps to cure the error, there might have been a reasonable probability that the outcome of the trial would have been different. Id. at 848-849. The only question the court did not resolve was the question of whether the trial lawyer's failure to object to the prosecutor's vouching “rendered his performance ineffective under Strickland [v. Washington, 466 U.S. 668, 687 (1984)].” Id. at 848.

         II. ...

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