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Toliver v. Symdon

United States District Court, E.D. Wisconsin

November 29, 2017

DENISE SYMDON, Respondent.


          J.P. Stadtmueller U.S. District Judge

         Petitioner, 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.


         State 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).

         A 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).

         The 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)).

         Indeed, 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 determinations.”).

         As the 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., concurring)).

         A 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).

         2. BACKGROUND

         Toliver's 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.

         In 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.

         Toliver's 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).

         The 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).

         If the 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.

         The 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.

         On May 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 months.

         The 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 that.
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 1991.

(Docket #9-13 at 2-3). Counsel for the State concurred. Id. at 4.

         The 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 ...

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