Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Sundermeyer v. Richardson

United States District Court, E.D. Wisconsin

February 22, 2018

REED RICHARDSON, Warden, Stanley Correctional Institution, [1]Respondent.


          LYNN ADELMAN District Judge.

         Joseph Sundermeyer petitions for a writ of habeas corpus under 28 U.S.C. § 2254.

         I. BACKGROUND

         After a jury trial in Milwaukee County Circuit Court, Joseph Sundermeyer was convicted of two crimes: burglary, and armed robbery by the use or threat of force. These convictions arose out of events that occurred on February 7 and 8, 2005. The court sentenced Sundermeyer to a total of 25 years of initial confinement and 10 years of extended supervision.

         Sundermeyer appealed his conviction to the Wisconsin Court of Appeals, which affirmed. He then sought review by the Wisconsin Supreme Court, which was denied. During his direct appeal to these courts, Sundermeyer did not raise the issues he now pursues in his federal habeas petition. However, after the conclusion of his direct appeal, Sundermeyer, proceeding pro se, filed a motion for postconviction relief in the state trial court under Wis.Stat. § 974.06. In that motion, he raised the two claims that he now pursues in his federal petition. Both claims assert that Sundermeyer received ineffective assistance from his trial and postconviction attorneys. The claims of ineffective assistance are based on two general omissions by trial counsel: (1) his failure to challenge a warrant for a DNA sample, and (2) his failure to introduce at trial three categories of documentary evidence that, according to Sundermeyer, would have bolstered his defense. The claims involving postconviction counsel are based on that counsel's failure to raise trial counsel's ineffectiveness in these two respects as issues on appeal.[2] The trial court issued a series of written opinions, held a hearing under State v. Machner, 92 Wis.2d 797 (Ct. App. 1979), and ultimately denied the postconviction motion. Sundermeyer appealed to the Wisconsin Court of Appeals. That court affirmed the order of the trial court in a written opinion. The facts described below are based on the facts as described by the trial court and Wisconsin Court of Appeals in their written opinions.

         The victim of both the armed robbery and the burglary was Loretta Howard. At trial, she testified that, in 2003, while she was married to someone else, she began a romantic relationship with Sundermeyer. Howard testified that the romance ended in the summer of 2004, after which she and Sundermeyer remained friends.

         Howard testified that, when she left work on February 7, 2005, she found Sundermeyer waiting for her near her car. He asked for a ride and Howard agreed. After Howard drove Sundermeyer to a house, Sundermeyer told her that he wanted to resume their romance. Howard rebuffed him. Sundermeyer became angry and began punching her in the face. He pulled out a knife and threatened to harm her. Eventually, Sundermeyer demanded that Howard go to an ATM, take out money, and give it to him. Howard complied. She then quickly drove to a gas station and demanded that Sundermeyer get out of the vehicle. He did, but on the way out of the car he grabbed Howard's cell phone. Sundermeyer left the knife in the car. Howard did not immediately report this incident to the police.

         Howard testified that, the next morning, she began receiving phone calls from Sundermeyer while she was at work. Howard refused to answer the calls, but eventually one of her co-workers spoke to Sundermeyer. He told the co-worker that if Howard did not get on the phone, she would regret it, and also that he would “do something to her house.” Later, Howard did take one of the calls, during which Sundermeyer told her that if she did not want to be with him, then whatever he did would be “on her.”

         Howard testified that sometime later that day her mother called her at work and told her to come home. When Howard got home she saw that her house had been extensively vandalized and that some of her property, including jewelry, was missing. Howard's mother contacted the police, and Sundermeyer was arrested. The police found some of Howard's missing property in Sundermeyer's possession.

         At trial, Sundermeyer testified that he was innocent of both charges. He testified that, contrary to Howard's claim that she ended the romantic relationship in summer 2004, in fact the relationship lasted until February 3, 2005, when he decided to end it because Howard had been physically and verbally abusing him. Sundermeyer testified that he had been living in Howard's house until February 3, when he left and moved in with his mother.

         Sundermeyer now contends that the conflict between his testimony and Howard's testimony over when their relationship ended presented an important credibility issue. If the jury thought Howard was lying when she testified that the relationship ended in the summer of 2004, then the jury might find her less credible overall. Moreover, if, at the time of the crimes, Sundermeyer had just recently ended his relationship with Howard, then the jury might think he had less of a motive to retaliate by robbing her and vandalizing her home.

         At trial, trial counsel attempted to show that Howard's relationship with Sundermeyer lasted until early 2005, as Sundermeyer had claimed, and that Sundermeyer was living at her home until that time. While cross-examining Howard, he elicited testimony that Sundermeyer was in her home on January 19, 2005, when he let a furniture repairperson into the home to fix a sofa. Trial counsel also presented witnesses who testified about times they saw Howard and Sundermeyer together at the end of 2004 and early 2005. However, Sundermeyer now contends that his trial counsel rendered ineffective assistance by not presenting the jury with additional evidence that supported his testimony that the relationship lasted until early 2005.

         Sundermeyer describes the additional evidence as falling into three categories. The first consists of records showing that Howard visited Sundermeyer numerous times between August 2004 and October 2004 while he was in jail at either the Milwaukee County House of Correction or the Community Correction Center. These records also show that Howard deposited money into Sundermeyer's inmate account in October and September 2004. The second category consists of records showing that Howard rented a motel room for two people in October 2004. Sundermeyer contends that he shared the room with Howard, but the motel receipt does not list Sundermeyer as a guest. The third category consists of telephone records and other records that, according to Sundermeyer, suggest that he was making calls from Howard's home between December 24, 2004 and February 3, 2005.

         Besides arguing that trial counsel was ineffective in failing to use the three categories of evidence discussed above, Sundermeyer argues that trial counsel was ineffective in failing to challenge a search warrant allowing the state to obtain his DNA. This issue relates to the knife that the police recovered from Howard's car after the burglary, and which Howard claimed Sundermeyer used during the armed robbery. The detective investigating the robbery submitted the knife to the state crime lab for DNA testing. The lab retrieved DNA from the knife's handle and compared it to the DNA on file in the state's databank. This test did not identify Sundermeyer as a contributor to the DNA, but it revealed that several individuals had left their DNA on the knife. Using the state databank, the lab was able to identify one of those individuals as being a man named Larry Bauer. The lab stated ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.