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Wilkinson v. Strahota

United States District Court, E.D. Wisconsin

March 9, 2018

EDDIE WILKINSON, Petitioner,
v.
DON STRAHOTA, Warden, New Lisbon Correctional Institution, Resepondent.

          DECISION AND ORDER

          LYNN ADELMAN, United States District Judge

         Eddie Wilkinson petitions for a writ of habeas corpus under 28 U.S.C. § 2254.

         I. BACKGROUND

         Wilkinson's criminal case began when the state charged him with one count of burglary. The state alleged that Wilkinson entered a vacant home in the City of Milwaukee and removed stained glass windows and doors. A month before trial, the state filed an amended information charging Wilkinson with two additional counts: burglary of a second property, and receiving stolen property. These additional counts also involved stained glass windows. A jury found Wilkinson guilty of both burglary charges but acquitted him of receiving stolen property. The court sentenced Wilkinson to two consecutive 10-year prison terms, each term comprising 5 years' initial confinement and 5 years' extended supervision.

         Wilkinson's appellate counsel filed a no-merit appeal. In her no-merit brief, counsel discussed whether trial counsel rendered ineffective assistance. She identified three potential errors: (1) not objecting to the amended information, (2) not moving to sever the three counts for trial, and (3) not moving to strike an allegedly biased juror for cause. (Counsel also discussed whether the evidence was sufficient to support the convictions and whether the trial court properly exercised its sentencing discretion.) Wilkinson filed a pro se response to the no-merit brief. In that response, he raised the following issues: (1) appellate counsel was ineffective, (2) the prosecutor tampered with evidence and knowingly used false evidence, (3) trial counsel was ineffective for not calling an expert witness, and (4) the witnesses who testified in support of the receiving-stolen-property charge (of which he was acquitted) were not credible.

         The Wisconsin Court of Appeals reviewed the no-merit brief and Wilkinson's pro se response, and also conducted an independent review of the record. State v. Wilkinson, No. 2013AP2517-CRMN, slip op. at 4 (Wis. Ct. App. Dec. 30, 2014). It found no arguably meritorious appeal issues, summarily affirmed the judgment of conviction, and discharged appellate counsel. Wilkinson then filed a pro se petition for review with the Wisconsin Supreme Court that raised the following claims: (1) that he was entitled to have an expert witness testify at trial concerning the authenticity of stained glass, (2) that trial counsel rendered ineffective assistance in failing to investigate the case before trial, (3) that one of the jurors was biased, (4) that the trial court erred in admitting “other acts” evidence, and (4) that the jury should have been instructed differently as to his theory of the defense. ECF No. 18-2. Wilkinson also asked to have “effective” appellate counsel appointed to represent him. Id. The Wisconsin Supreme Court denied review.

         A few months later, Wilkinson returned to the trial court and filed a pro se motion for collateral postconviction relief under Wis.Stat. § 974.06. The motion itself is not in the record, but the trial court described the motion as raising “ineffective assistance of counsel and other claims, ” including trial counsel's failure to move to strike the allegedly biased juror for cause. ECF No. 15-3. The trial court denied the postconviction motion. It found that the Wisconsin Court of Appeals already addressed the juror issue in its no-merit opinion and that therefore Wilkinson could not relitigate it. The court also found that all of Wilkinson's other issues were waived when he failed to raise them in his pro se response to counsel's no-merit brief.

         Wilkinson tried to obtain appellate review of the trial court's denial of his postconviction motion. However, the court of appeals initially determined that the papers he filed did not qualify as a notice of appeal. See ECF Nos. 15-4, 15-5 &15-6. Eventually, Wilkinson filed a notice of appeal, but by that point the time to file a timely appeal had lapsed. The court of appeals dismissed the appeal for lack of jurisdiction on the ground that no timely notice of appeal had been filed. See State v. Wilkinson, No. 2016AP449 (Wis. Ct. App. April 5, 2016). Wilkinson sought review in the Wisconsin Supreme Court, but that court denied his petition.

         Wilkinson now seeks relief under § 2254. In his petition, he alleges that he was denied his Sixth Amendment right to represent himself at trial, and also that his trial counsel rendered ineffective assistance by committing the following errors: (1) not moving to strike a juror for cause, (2) failing to cross-examine a fingerprint expert, (3) failing to ask certain specific questions during his cross-examination of the state's two DNA experts, and (4) failing to argue that Wilkinson had been framed by the police. The respondent argues that Wilkinson procedurally defaulted all of his claims other than his ineffective-assistance claim based on counsel's not moving to strike the juror for cause. As to that claim, the respondent argues that Wilkinson has not shown that he is entitled to relief.

         II. DISCUSSION

         I will first address whether Wilkinson is entitled to habeas relief on his claim involving the allegedly biased juror, which the respondent concedes has been properly exhausted. I then address whether Wilkinson has procedurally defaulted his remaining claims and conclude that he has. However, I also discuss the merits of the defaulted claims.

         A. Motion to Strike Juror

         As part of Wilkinson's no-merit appeal, appellate counsel discussed the possibility that trial counsel rendered ineffective assistance by not moving to strike Juror #6. During voir dire, this juror indicated that he worked for the City of Milwaukee as a housing rehab specialist. He testified that, during the course of his job, he learned that thieves would sometimes burglarize vacant city properties and remove stained glass windows. This juror also testified that he knew two of the state's witnesses. The first was Karen Taylor, who also worked for the city. The state offered Taylor's testimony with respect to one of the burglaries, which involved a city property, to establish that the city had not granted Wilkinson permission to enter the property. The other witness known by Juror #6 was Dustin Lunde. Lunde owned an antique shop where the stained glass windows relevant to the receiving-stolen-property charge were found. Juror #6 stated that he met Lunde through his work during college for another antiques dealer.

         Wilkinson's appellate counsel determined that an ineffective-assistance claim based on trial counsel's failure to move to strike Juror #6 for cause would not have arguable merit. The Wisconsin Court of Appeals agreed with appellate counsel's assessment. It wrote:

The transcript reveals no evidence of subjective bias. Juror #6 stated in response to questioning that he could be fair and unbiased. As for objective bias, “‘a prospective juror's knowledge of or acquaintance with a participant in the trial, without more, is insufficient grounds for disqualification.'” State v. Smith, 2006 WI 74, ¶ 34, 291 Wis.2d 569, 716 N.W.2d 482 (citation omitted brackets in Smith). There would be no arguable merit to a claim that trial counsel performed deficiently by not moving to strike this juror for cause.

Op. of Wis. Ct. of App. in 2013AP2517-CRMN, at 4.

         The Wisconsin Court of Appeals adjudicated this claim on the merits, and therefore the standard of review in 28 U.S.C. § 2254(d) applies. Under that standard, I may grant relief only if the court's adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States, or 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.

         In his brief in support of his federal petition, Wilkinson does not show that the Wisconsin Court of Appeals rendered a decision that was contrary to, or involved an unreasonable application of, Strickland v. Washington, 466 U.S. 668 (1984), or any other Supreme Court case. See Br. in Supp. at 10-13, ECF No. 16. Nor does he show that the court of appeals based its decision on an unreasonable determination of the facts. Nor can I detect any deficiency in the court of appeals's handling of this claim. Therefore, Wilkinson is not entitled to relief on this claim.

         B. Procedural Default

         The respondent contends that because Wilkinson did not properly present his remaining claims to the state courts through one complete round of review, and because it is now too late for him to do so, he has procedurally defaulted those claims. See Johnson v. Foster, 786 F.3d 501');">7786 F.3d 501, 504-05 (7th Cir. 2015).

         As noted above, during the no-merit appeal, neither Wilkinson, his appellate counsel, nor the court of appeals discussed any issue that Wilkinson now pursues in his federal petition, other than the issue involving the allegedly biased juror. Moreover, Wilkinson did not include any of those issues, other than the juror issue, in his petition for review with the Wisconsin Supreme Court on direct appeal. But Wilkinson did raise those issues in the motion for collateral postconviction relief he filed in the trial court under Wis.Stat. § 974.06. However, after the trial court denied his motion, Wilkinson failed to properly appeal to the Wisconsin Court of Appeals and the Wisconsin Supreme Court. Rather, Wilkinson did not file a timely notice of appeal, and therefore the court of appeals dismissed his appeal for lack of jurisdiction.

         The respondent argues that Wilkinson committed two procedural defaults: (1) he failed to raise his federal claims in his pro se response to the no-merit brief, and (2) he failed to file a timely appeal of the trial court's denial of his postconviction motion. As to the first alleged default, the Seventh Circuit has been reluctant to find that a Wisconsin habeas petitioner procedurally defaults a claim by failing to raise it in his pro se response to a no-merit report, especially when the allegedly defaulted claim involves ineffective assistance of trial counsel. See Johnson v. Thurmer, 624 F.3d 786, 789-91 (7th Cir. 2010); Morales v. Boatwright, 580 F.3d 653, 660-62 (7th Cir. 2009); Page v. Frank, 343 F.3d 901, 907-09 (7th Cir. 2003). This is for two reasons. First, habeas review is not barred when a state applies a procedural rule in “an unprincipled, inconsistent, or freakish manner, ” and the Seventh Circuit has found Wisconsin's appellate procedure inconsistent to the extent that it deems ineffective-assistance claims waived if not raised in a pro se response to a no-merit brief. Johnson, 624 F.3d at 789. The court noted that, usually, the Wisconsin courts will not allow an ineffective-assistance claim to be raised on direct appeal unless the criminal defendant first raised the claim in a postconviction motion filed in the trial court. Id. at 790. But in a no-merit appeal, appellate counsel likely will not have filed a ...


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