United States District Court, E.D. Wisconsin
William C. Griesbach, Chief Judge United States District
On November 29, 2017, Petitioner Cedrick Brown 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. Brown was convicted in Rock
County Circuit Court of possessing between 200 and 1, 000
grams of marijuana with the intent to deliver at or near a
school as a repeat offender and as a party to a crime. He was
sentenced to eight years imprisonment and three years of
extended supervision. Brown is currently incarcerated at New
Lisbon Correctional Institution.
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 . . . .
Rules Governing § 2254 Cases. During my initial review
of habeas petitions, I look to see whether the petitioner has
set forth cognizable constitutional or federal law claims and
exhausted available state remedies.
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. Jaimeti, 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).
after a review of the petition, its exhibits, and court
documents contained in the public record,  it is clear that
Brown is not entitled to habeas relief under § 2254.
Brown lists two separate grounds for relief. He claims that
the Wisconsin Court of Appeals applied the wrong standard in
evaluating his claim that insufficient evidence supported his
conviction and that it applied the standard unreasonably. The
United States Supreme Court recognized that the relevant
question in reviewing sufficiency of evidence claims 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.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979) (citation omitted).
In State v. Poellinger, the Wisconsin Supreme Court
adopted a similar standard: “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.” 153 Wis.2d 493, 507, 451
N.W.2d 752 (1990) (citation omitted).
the Wisconsin Court of Appeals did not mention State v.
Poellinger specifically, it reviewed Brown's claim
under the same standard articulated in Poellinger.
The court noted that, “[i]n reviewing challenges to the
sufficiency of evidence, we give great deference to the
trier-of-fact and do not substitute our judgment unless the
evidence, viewed most favorably to the verdict, is so lacking
in probative value and force that no reasonable fact finder
could have found guilt beyond a reasonable doubt.”
See State v. Brown, 2015AP1802-CR, 2016 WL 8614295,
at *2 (Wis. Ct. App. Sept. 16, 2016) (citing State v.
Routon, 2007 WI.App. 178, ¶ 17, 304 Wis.2d 480, 736
N.W.2d 530). This standard “effectively
duplicates” the federal standard for sufficiency
challenges articulated in Jackson. Adams v.
Bertrand, 453 F.3d 428, 432 (7th Cir. 2006). In short,
the Wisconsin Court of Appeals applied the correct rule in
evaluating Brown's claim.
Brown asserts that the Court of Appeals applied the standard
unreasonably. In particular, he asserts that the Court of
Appeals intruded on the jury's role as factfinder by
presuming what inferences the jury drew from the evidence
presented at trial. The court concludes, however, that the
Court of Appeals applied the standard correctly. To convict
Brown of possessing between 200 and 1, 000 grams of marijuana
with the intent to deliver at or near a school as a repeat
offender and as a party to a crime, the jury was required to
find either that Brown had directly committed the offense or
that he had aided and abetted the commission of the offense
by Stanley Thornton, the other alleged party to the offense.
As a result, the State needed to prove the following elements
beyond a reasonable doubt: that Brown or Thornton possessed
THC; that Brown or Thornton knew or believed the substance
was THC; that Brown or Thornton intended to deliver the THC;
that the amount of THC possessed was over 200 grams; and that
the possession with intent to deliver occurred within 1, 000
feet of a school. See Wis. Stat. § 961.41(1m).
articulating the appropriate standard, the court summarized
the facts and concluded there was sufficient evidence for a
reasonable trier of fact to find Brown guilty. The court
Pursuant to a traffic stop, law enforcement officers
recovered a green leafy substance that appeared to be
marijuana packaged into forty-five individually twisted off
sandwich baggies from the center console of a vehicle that
Thornton was driving and in which Brown was the passenger.
There was a shoebox containing baggies with more than 450
additional grams of marijuana in the backseat of the vehicle,
and the odor from the marijuana was apparent. The substance
in the baggies tested positive for THC. In addition, officers
recovered a scale, cash, additional baggies, and four cell
phones from the vehicle, $343 and a marijuana blunt from
Brown provided a false name during the traffic stop, tried to
move over and start the car while Thornton was being
questioned, and then fled on foot and was found hiding in a
clump of bushes and a small tree half a block away. After his
arrest, Thornton told police that Brown had transferred
“all the property” from his own car into
Thornton's car earlier in the day.
Brown, 2016 WL 8614295, at *1. The court explained
that “[b]ased on Thornton's statement to the
police, the jury could reasonably infer that Brown himself
had brought the marijuana into Thornton's car with the
intent to sell it. Additionally or alternatively, the jury
could infer from Brown's provision of a false name to
police, his flight from the traffic stop, and the amount of
cash on his person that he was fully aware of and involved in
Thornton's drug-dealing activity.” Id. at
*2. Brown does not contest any of these facts. His argument
is that the inferences to which they give rise should not
have been considered. Yet, the Court of Appeals properly
reviewed the evidence and concluded “any reasonable
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” See Jackson,
443 U.S. at 319. The Court of Appeals decision was eminently
reasonable and does not come close to reaching the federal
AEDPA standard for relief. Therefore, federal habeas relief
is unavailable for this claim. The petition will therefore be
dismissed for lack of merit on all claims.
filed with his petition a request to proceed in forma
pauperis. Under Rule 3 of the Rules Governing § 2254
Cases, the petitioner is required to file an affidavit of
indigence as required by § 1915. He has done so, and I
am satisfied that he lack sufficient funds to proceed ...