United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
Stephen Toliver (“Toliver”), has filed a petition
for a writ of habeas corpus pursuant to 28 U.S.C. §
2254, alleging that his state conviction and sentence were
imposed in violation of the Constitution. (Docket #1). The
parties have fully briefed their respective positions on
Toliver's asserted grounds for relief. For the reasons
stated below, the Court finds that Toliver's petition is
without merit and must be denied.
STANDARD OF REVIEW
criminal convictions are generally considered final. Review
may be had in federal court only on limited grounds. To
obtain habeas relief from a state conviction, 28 U.S.C.
§ 2254(d)(1) (as amended by the Antiterrorism and
Effective Death Penalty Act (“AEDPA”)) requires
the petitioner to show that the state court's decision on
the merits of his constitutional claim was contrary to, or
involved an unreasonable application of, clearly established
federal law as determined by the United States Supreme Court.
28 U.S.C. § 2254(d)(1); Brown v. Payton, 544
U.S. 133, 141 (2005). The burden of proof rests with the
petitioner. Cullen v. Pinholster, 563 U.S. 170, 181
(2011). The relevant decision for this Court to review is
that of the last state court to rule on the merits of the
petitioner's claim. Charlton v. Davis, 439 F.3d
369, 374 (7th Cir. 2006).
state-court decision runs contrary to clearly established
Supreme Court precedent “if it applies a rule that
contradicts the governing law set forth in [those] cases, or
if it confronts a set of facts that is materially
indistinguishable from a decision of [the Supreme] Court but
reaches a different result.” Brown, 544 U.S.
at 141. Similarly, a state court unreasonably applies clearly
established Supreme Court precedent when it applies that
precedent to the facts in an objectively unreasonable manner.
Id.; Bailey v. Lemke, 735 F.3d 945, 949
(7th Cir. 2013).
AEDPA undoubtedly mandates a deferential standard of review.
The Supreme Court has “emphasized with rather
unexpected vigor” the strict limits imposed by Congress
on the authority of federal habeas courts to overturn state
criminal convictions. Price v. Thurmer, 637 F.3d
831, 839 (7th Cir. 2011). It is not enough for the petitioner
to prove the state courts were wrong; he must also prove they
acted unreasonably. Harrington v. Richter, 562 U.S.
86, 101 (2005); Campbell v. Smith, 770 F.3d 540, 546
(7th Cir. 2014) (“An ‘unreasonable application
of' federal law means ‘objectively unreasonable,
not merely wrong; even ‘clear error' will not
suffice.'”) (quoting White v. Woodall, 134
S.Ct. 1697, 1702 (2014)).
the habeas petition must demonstrate that the state court
decision is “so erroneous that ‘there is no
possibility fairminded jurists could disagree that the state
court's decision conflicts with [the Supreme] Court's
precedents.'” Nevada v. Jackson, 133 S.Ct.
1990, 1992 (2013) (quoting Harrington, 562 U.S. at
102). The state court decisions must “be given the
benefit of the doubt.” Woodford v. Visciotti,
537 U.S. 19, 24 (2002); Hartjes v. Endicott, 456
F.3d 786, 792 (7th Cir. 2006). Further, when a state court
applies general constitutional standards, it is afforded even
more latitude under the AEDPA in reaching decisions based on
those standards. Knowles v. Mirzayance, 556 U.S.
111, 123 (2009); Yarborough v. Alvarado, 541 U.S.
652, 664 (2004) (“[E]valuating whether a rule
application was unreasonable requires considering the
rule's specificity. The more general the rule, the more
leeway courts have in reaching outcomes in case-by-case
Supreme Court has explained, “[i]f this standard is
difficult to meet, that is because it was meant to be.”
Harrington, 562 U.S. at 102. Indeed, Section 2254(d)
stops just short of “imposing a complete bar on
federal-court relitigation of claims already rejected in
state proceedings.” See Id. This is so because
“habeas corpus is a ‘guard against extreme
malfunctions in the state criminal justice systems, ' not
a substitute for ordinary error correction through
appeal.” Id. at 102-103 (quoting Jackson
v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J.,
federal court may also grant habeas relief on the alternative
ground that the state court's adjudication of a
constitutional claim was based upon an unreasonable
determination of the facts in light of the evidence
presented. 28 U.S.C. § 2254(d)(2). The underlying state
court findings of fact and credibility determinations against
the petitioner are, however, presumed correct. Newman v.
Harrington, 726 F.3d 921, 928 (7th Cir. 2013). The
petitioner overcomes that presumption only if he proves by
clear and convincing evidence that those findings are wrong.
Id. § 2254(e)(1); Campbell, 770 F.3d
at 546. “A decision ‘involves an unreasonable
determination of the facts if it rests upon factfinding that
ignores the clear and convincing weight of the
evidence.'” Bailey, 735 F.3d at 949-50
(quoting Goudy v. Basinger, 604 F.3d 394, 399-400
(7th Cir. 2010)). “‘[A] state-court factual
determination is not unreasonable merely because the federal
habeas court would have reached a different conclusion in the
first instance.'” Burt v. Titlow, 134
S.Ct. 10, 15 (2013) (quoting Wood v. Allen, 558 U.S.
290, 301 (2010)). If shown, however, an unreasonable factual
determination means that this Court must review the claim in
question de novo. Carlson v. Jess, 526 F.3d
1018, 1024 (7th Cir. 2008).
case has a long and complicated procedural history, involving
several state postconviction motions and two prior grants of
habeas relief by federal courts. The issues presented for
decision at this time are relatively narrow, however, and so
the Court will confine itself to those facts necessary for
disposition of this petition.
1991, the State of Wisconsin charged Toliver and his brother
with first-degree intentional homicide for causing the death
of Tina Rogers. The jury convicted Toliver. Toliver's
direct appeal and two collateral attacks under Wis.Stat.
§ 974.06 were unsuccessful. However, in 1999, this Court
granted Toliver's habeas petition on the ground that he
was denied his right to counsel during direct appeal.
Wisconsin ex rel. Toliver v. McCaughtry, 72
F.Supp.2d 960, 979 (E.D. Wis. 1999). In response, Wisconsin
reinstated Toliver's direct appeal rights.
new direct appeal alleged in part that his trial counsel was
ineffective. The state courts rejected Toliver's
arguments, as did this Court when he filed another habeas
petition. The Seventh Circuit, though, remanded for an
evidentiary hearing on the ineffective-assistance claim.
Toliver v. McCaughtry, 539 F.3d 766 (7th Cir. 2008).
This Court granted the petition after the hearing, and the
Seventh Circuit affirmed on appeal. Toliver v.
Pollard, 688 F.3d 853, 862-63 (7th Cir. 2012).
State then elected to retry Toliver. In January 2013, Toliver
and the State reached a plea agreement for Toliver to plead
guilty to one count of felony murder, in violation of
Wis.Stat. § 940.03, and one count of hiding a corpse, in
violation of Wis.Stat. § 940.11(2). The maximum penalty
for these charges, combined, was thirty-five years with
mandatory release after two-thirds of the sentence was
served. See Wis. Stat. § 302.11(1).
court sentenced Toliver to the maximum term, he would have
been released in under two years. The parties based this
conclusion on Toliver's having 7, 917 days of sentence
credit from his date of arrest on May 24, 1991 until the date
of sentencing on January 25, 2013. The court sentenced
Toliver to consecutive sentences of thirty years for the
felony murder and five years for hiding a corpse and awarded
him 7, 917 days of credit.
court also ordered 297 days of pretrial sentence credit from
the day of Toliver's arrest on May 24, 1991 until his
original sentencing on March 16, 1992. The Wisconsin
Department of Corrections (“DOC”) informed the
circuit court that it would apply the 297 days of credit to
Toliver's sentence, but counting from September 5, 1992,
rather than the date of the original sentencing hearing on
March 16 of that year. This was because Toliver's
original sentence was consecutive to another sentence he was
already serving, and he did not start serving the instant
term until September 5, 1992.
3, 2013, DOC again contacted the circuit court, this time to
inform it that hiding a corpse was not a crime when Toliver
acted in 1991. Such conduct was not criminalized until May
1992. A status conference was held in the trial court on June
26, 2013, where defense counsel told the trial court that
Toliver's plea to felony murder and hiding a corpse
should be vacated in light of the information that hiding a
corpse was not an offense in 1991. Defense counsel told the
court that Toliver wanted to proceed to trial on the original
charge of first-degree intentional homicide. The State
informed the court at this hearing that it was offering to
Toliver a plea where he would be mandatorily released in ten
parties reconvened the next day, on June 27, 2013. Defense
counsel told the court that the parties agreed that the
felony murder conviction would not be vacated, that the
hiding a corpse conviction would be vacated, and that Toliver
would plead guilty to first-degree reckless endangerment
under Wis.Stat. § 941.30(1). The hearing transcript
reads, in relevant part:
[DEFENSE COUNSEL:] Your Honor, I believe we have a resolution
of the matter. And if you wish, I'll put forth the status
of what we learned since the plea and sentencing that
occurred earlier this year. That the Count 2 of the previous
information, which charged the violation of the hiding the
corpse statute, that the official date of enactment on that
offense occurred probably about a month to six weeks after
the offense date in this. So by operation of law, that Count
2 plea and sentencing becomes null and void. In review of
that, Mr. Williams and I have conferred. And I conferred with
Mr. Toliver the proposal. We have a new information
that's filed today. He is prepared while the information
leaves Count 1 in there, the Count 1, plea and sentencing has
already taken place. The Court has imposed a sentence on
THE COURT: On the felony murder that says the same -
that's not being vacated?
[DEFENSE COUNSEL]: That's correct. So it would be
necessary today to take a plea to Count 2, which is
first-degree reckless endangerment contrary to Section
941.30(1), under the statutes of -- Wisconsin Statutes of
(Docket #9-13 at 2-3). Counsel for the State concurred.
Id. at 4.
Court then confirmed Toliver's agreement to reaffirm his
guilty plea to felony murder:
THE COURT: Okay. So you understand, sir, Count 1 is not being
vacated. We're vacating Count 2. And you're entering
a plea apparently to the ...