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Garcia v. Pollard

United States District Court, E.D. Wisconsin

June 16, 2017

CESAR O GARCIA, Petitioner,
v.
WILLIAM J POLLARD, Respondent.

          SCREENING ORDER

          William C. Griesbach, Chief Judge United States District Court

         On May 17, 2017, Petitioner Cesar O. Garcia 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. Petitioner was convicted in Kenosha County Circuit Court of three counts of attempted first degree intentional homicide, three counts of first degree reckless endangering safety, and one count of aggravated battery by use of a dangerous weapon. Prior to sentencing, the prosecutor moved to dismiss the three counts of first degree reckless endangering safety, realizing that they were lesser included charges of the three counts of attempted first degree intentional homicide under Wisconsin law. He was sentenced to 40 years initial confinement and is currently incarcerated at Dodge Correctional Institution.

         I must give the case prompt initial consideration pursuant to Rule 4 of the Rules Governing § 2254 Cases, which reads:

If it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner. If the petition is not dismissed, the judge must order the respondent to file an answer, motion, or other response within a fixed time . . . .

Rule 4, Rules Governing § 2254 Cases.

         Garcia essentially raises five different grounds for relief: (1) trial counsel was ineffective for failing to properly address that he was charged and convicted on both attempted first degree intentional homicide and its lesser included offense of first degree reckless endangering safety; (2) trial counsel was ineffective by improperly introducing other acts evidence about a prior arrest and allowing the prosecutor to question Garcia about it; (3) the prosecutor's improper comments during closing arguments deprived him of due process and his trial counsel was ineffective for failing to object on that ground; (4) postconviction counsel was ineffective for failing to allege trial counsel was ineffective for omitting the improper closing argument and other acts evidence arguments; and (5) the cumulative effect of the above errors prejudiced his defense at trial.

         A federal court is authorized to grant habeas corpus relief to a state prisoner only upon a showing that "he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The granting of such relief by federal courts is further limited by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which “significantly constrain any federal court review of a state court conviction.” Searcy v. Jaimet, 332 F.3d 1081, 1087 (7th Cir. 2003). 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). In evaluating an application for habeas corpus pursuant to the judgment of a state court, facts determined by the state court are presumed to be correct. 28 U.S.C. § 2254(e)(1). The applicant is burdened with rebutting the presumption of correctness by clear and convincing evidence. Id.

         When determining whether a state court decision is contrary to, or involved an unreasonable application of, clearly established federal law, lower federal courts must look exclusively to Supreme Court precedent in reviewing habeas petitioners' claims. Sweeney v. Parke, 113 F.3d 716, 718 (7th Cir. 1997). Petitioners “must show that the Supreme Court has ‘clearly established' the propositions essential to their position.” Mueller v. Sullivan, 141 F.3d 1232, 1234 (7th Cir. 1998). A state court decision is “contrary to” Supreme Court precedent “if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases, ” or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.” Williams v. Taylor, 529 U.S. 362, 405 (2000). The state court decision involves an unreasonable application of such law if “the state court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. at 407. I will address each of Petitioner's claims in turn.

         A. Lesser Included Offenses

         Garcia claims he received ineffective assistance of trial counsel regarding her treatment of the lesser included offenses. He was charged and convicted of first degree intentional homicide (Counts 1, 3, and 5), but also on the lesser included offense first degree reckless endangering safety (Counts 2, 4, and 6). He asserts that trial counsel should have filed a pre-trial motion to compel the State to either prosecute under Counts 1, 3, and 5 or under Counts 2, 4, and 6. He also asserts that trial counsel was ineffective for the failure to consider, request, and argue for a jury instruction explaining “lesser included offenses.”

         “[T]he Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense.” Brown v. Ohio, 432 U.S. 161, 169 (1977). 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 a claim of ineffective assistance of counsel, a petitioner must show that counsel was deficient in his performance and that the deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance requires demonstrating that the lawyer's representation fell below an objective standard of reasonableness as measured by prevailing professional norms. Id. at 687-88. ...


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