United States District Court, E.D. Wisconsin
JOSEPH J. JORDAN, Petitioner,
WARDEN RANDALL R. HEPP, Respondent.
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS
JORDAN FROM CUSTODY UNLESS THE STATE INITIATES PROCEEDINGS
WITHIN NINETY DAYS
PAMELA PEPPER United States District Judge.
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.
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.
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.
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.
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?
No. 47-9 at 469. The petitioner's counsel did not object
to these statements.
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).
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).
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
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.