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Johnson v. Humphreys

United States District Court, E.D. Wisconsin

November 28, 2017




         Donelle L. Johnson, a prisoner in Wisconsin custody, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Johnson was convicted of first degree sexual assault of a child and was sentenced to sixteen years of imprisonment, consisting of ten years of initial confinement followed by six years of extended supervision. (Judgment of Conviction, Docket # 1-1 at 26-27.) Johnson alleges that his conviction and sentence are unconstitutional. For the reasons stated below, the petition for writ of habeas corpus will be denied.


         After a bench trial, Johnson was convicted in January 2011 of one count of first degree sexual assault of a child under thirteen. (State v. Johnson, No. 2013AP697 (Wis. Ct. App. Feb. 21, 2014), Docket # 1-1 at 4.) The count stemmed from allegations made by M.J. that Johnson had been sexually assaulting her during her weekend visits to his home since she was seven years old. (Id.) Following his conviction, Johnson's appointed postconviction and appellate counsel filed a no-merit report pursuant to Anders v. California, 386 U.S. 738 (1967) and Wis.Stat. § 809.32. Johnson submitted a response, and his counsel filed two supplemental no-merit reports. (Id. at 3-4.) The court of appeals concluded that no arguably meritorious issues existed for an appeal, and affirmed the conviction on February 21, 2014. (Id. at 4.) Johnson filed a petition for review with the Wisconsin Supreme Court, which was denied on August 4, 2014. (Petition for Review, Docket # 1-1 at 22.) Subsequently, Johnson filed this petition for writ of habeas corpus.


         Johnson's petition is governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Under AEDPA, a writ of habeas corpus may be granted if the state court decision on the merits of the petitioner's claim (1) was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” 28 U.S.C. § 2254(d) (1); or (2) “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)(2).

         A state court's decision is “contrary to . . . clearly established Federal law as established by the United States Supreme Court” if it is “substantially different from relevant [Supreme Court] precedent.” Washington v. Smith, 219 F.3d 620, 628 (7th Cir. 2000) (quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)). The court of appeals for this circuit recognized the narrow application of the “contrary to” clause:

[U]nder the “contrary to” clause of § 2254(d)(1), [a court] could grant a writ of habeas corpus . . . where the state court applied a rule that contradicts the governing law as expounded in Supreme Court cases or where the state court confronts facts materially indistinguishable from a Supreme Court case and nevertheless arrives at a different result.

Washington, 219 F.3d at 628. The court further explained that the “unreasonable application of” clause was broader and “allows a federal habeas court to grant habeas relief whenever the state court ‘unreasonably applied [a clearly established] principle to the facts of the prisoner's case.'” Id. (quoting Williams, 529 U.S. at 413).

         To be unreasonable, a state court ruling must be more than simply “erroneous” and perhaps more than “clearly erroneous.” Hennon v. Cooper, 109 F.3d 330, 334 (7th Cir. 1997). Under the “unreasonableness” standard, a state court's decision will stand “if it is one of several equally plausible outcomes.” Hall v. Washington, 106 F.3d 742, 748-49 (7th Cir. 1997). In Morgan v. Krenke, the court explained that:

Unreasonableness is judged by an objective standard, and under the “unreasonable application” clause, “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 also be unreasonable.”

232 F.3d 562, 565-66 (7th Cir. 2000) (quoting Williams, 529 U.S. at 411), cert. denied, 532 U.S. 951 (2001). Accordingly, before a court may issue a writ of habeas corpus, it must determine that the state court decision was both incorrect and unreasonable. Washington, 219 F.3d at 627.


         Johnson alleges that his custody is unlawful on the following grounds: (1) insufficient evidence to support the conviction; (2) ineffective assistance of trial counsel; and (3) the trial court erroneously admitted other acts evidence. (Habeas Petition, Docket # 1 at 6-8.) I will address each argument in turn.

         1. Sufficiency of the Evidence

         Johnson argues there was insufficient evidence to sustain his conviction for first degree sexual assault of a child. The Due Process Clause of the Fourteenth Amendment “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime for which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). When insufficiency of evidence is asserted as the basis for a habeas petition, the petitioner must show “‘upon the record evidence adduced at the trial no rational trier of fact could have found proof beyond a reasonable doubt.'” Cabrera v. Hinsley, 324 F.3d 527, 533 (7th Cir. 2003) (citing Jackson v. Virginia, 443 U.S. 307, 319, 324 (1979)). The inquiry does not require the federal habeas court to “ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 319 (citing Woodby v. INS, 385 U.S. 276, 282 (1966)). Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id.

         A federal habeas court determines the sufficiency of the evidence in reference to the substantive elements of the criminal offense as defined by state law. See Jackson, 443 U.S. at 324 n. 16. Under Wisconsin law, a defendant is guilty of first degree sexual assault of a child, Wis.Stat. § 948.02(1)(e), if the State proves that the defendant had sexual contact or sexual intercourse with a person who has not attained the age of 13 years. Wis. JI-Crim 2102E (2011).

         In this case, in considering Johnson's sufficiency argument, the Wisconsin Court of Appeals used a standard consistent with Jackson. While the court of appeals did not cite to Jackson, it cited to State v. Poellinger, 153 Wis.2d 493, 451 N.W.2d 752 (1990), which pronounces a state law standard that is the functional equivalent to Jackson:

[I]n reviewing the sufficiency of the evidence to support a conviction, an appellate court may not substitute its judgment for that of the trier of fact unless the evidence, viewed most favorably to the state and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt. If any possibility exists that the trier of fact could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt, an appellate court may not overturn a verdict even if it believes that the trier of fact should not have found guilt based on the evidence before it.

153 Wis.2d at 507, 451 N.W.2d at 757-58 (1990) (internal citation omitted). As such, the court of appeals identified the correct governing legal rule. Thus, the only issue before me on habeas review is whether the state court unreasonably applied that rule to the facts of Johnson's case or unreasonably determined the facts in light of the evidence presented. In making that determination, it is important to recall that in a federal habeas corpus proceeding, the court's review is tempered by AEDPA's deferential constraints.

         In finding Johnson's sufficiency of the evidence argument lacked merit, the court of appeals considered the fact that the State needed to prove two elements: (1) that Johnson had sexual contact with M.J. and (2) that M.J. had not yet attained the age of thirteen years at the time of the sexual contact. (Docket # 1-1 at 8.) The court of appeals considered the evidence presented at trial and found ample evidence of guilt. (Id. at 10.) Specifically, the court of appeals considered the fact that M.J. testified that she was born on October 5, 1999 and that when she was ten years old, Johnson got drunk and approached her while she was sleeping, removed her pants, took off his clothes, and “put his stuff in [her] lower part.” (Id. at 8-9.) M.J. also testified that Johnson had similarly assaulted her approximately ten times, and the assaults began when she was seven years old. (Id. at 9.)

         The court of appeals considered the fact that while M.J. could not testify precisely when the sexual assault occurred, she stated that it was cold outside. (Id.) The court of appeals also considered the testimony of a nurse who first interviewed M.J. on January 28, 2010 as part of the response to a report that M.J.'s mother was physically abusing her and that during the examination, M.J. disclosed ongoing sexual abuse by Johnson. (Id.) The court of appeals considered the testimony of an expert in the dynamics of child sexual assault who testified as to the reasons why children sometimes delay disclosing sexual assault and may be inconsistent when describing events. (Id.)

         The court of appeals also considered an audiovisual recording of a statement M.J. gave to police on January 28, 2010, in which M.J. stated that on the previous Saturday night, during a weekend visit with Johnson in his home, Johnson took off her clothes and “put his stuff in [her's].” (Id.) After M.J. disclosed Johnson's sexual abuse, she described physical abuse by her mother. (Id.) M.J. then explained that she wanted to live with Johnson because her mother's home was “a terrible place, ” and that Johnson had promised not “to do that stuff anymore.” (Id.) The court of appeals also considered a recorded statement M.J. gave to a policewoman in May 2006 in which M.J. said that Johnson had touched her “puddin', ” which she explained is the part of her body she uses to go to the bathroom. (Id.)

         The court of appeals also considered the testimony of Johnson's girlfriend, LaBrittany B., who testified that on the weekend of January 22, 2010, she was home with Johnson while his children and M.J. were visiting. (Id. at 10.) LaBrittany B. testified that Johnson drank no alcoholic beverages and that at no time during the night did Johnson get out of the bed that she shared with him. (Id.) The court of appeals considered the trial court's finding that LaBrittany B. lied to protect Johnson because he is the father of her son. The trial court found M.J. to be credible as she had no motive to lie and because she had made her most recent disclosure at a time when she hoped to be taken from her physically abusive mother and placed with Johnson. The court of appeals also noted that the trial court recognized that “the details are all over the map, ” but found that M.J. was “consistent in one thing; and that is that the person that she calls her daddy, Donelle Johnson, puts his stuff in her private area.” (Id.)

         Johnson argues that the evidence was insufficient to support his conviction because he was charged with an assault that occurred in January and M.J. testified that no incident occurred in January. (Petitioner's Br. at 2, Docket # 34.) Johnson further argues that M.J. testified that she did not know what it means to be drunk and that no assault ever occurred on the couch. (Id.) Finally, Johnson argues that the trial court entered into evidence a video from 2010 in which M.J. stated that Johnson got drunk and assaulted her on the dining room couch in January. (Id. at 2-3.) Johnson argues this video was inadmissible under Wis.Stat. § 908.08(3) and (5). (Petitioner's Reply Br. at 4, Docket # 29.) Wis.Stat. § 908.08 addresses the admission of audiovisual recordings of statements of children and pursuant to § 908.08(5), if such evidence is admitted, the party who has offered the statement into evidence may call the child to testify immediately after the statement is shown to the trier of fact. Johnson argues that the statute requires the videotape to precede direct and cross-examination and in his case, the videotape was played after M.J. testified. (Id.)

         Johnson has not shown the court of appeals' decision was an unreasonable application of Jackson. As to the timing of the assault, contrary to Johnson's assertion, M.J. did not testify that no assault occurred in January. Rather, she testified that she did not know when the assault occurred, but that it was cold outside at the time. (Court Trial Day 1 at 21-22, Docket # 28-10.) The State need not prove the month of the assault. Rather, the State need only prove that sexual contact occurred and that M.J. had not yet reached the age of 13 at the time of the assault.

         Further, the case turned on M.J.'s credibility. The court of appeals considered the evidence M.J. presented, including the inconsistencies in her statement, and found the trial court did not err in finding Johnson guilty. M.J. testified that Johnson “touched [her] lower part with his stuff.” (Docket # 28-10 at 22.) Although the facts surrounding the assaults were inconsistent, M.J. was consistent in her testimony regarding the sexual contact between herself and Johnson. The State also presented evidence from a forensic interview program supervisor at the Child Protection Center with Children's Hospital of Wisconsin, Liz Ghilardi, who was qualified as an expert in the area of child sexual abuse dynamics. (Court Trial Day 2 at 20-23, Docket # 28-11.) Ghilardi testified that it is common for children to have difficulty being ...

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