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Bohannon v. Pollard

United States District Court, E.D. Wisconsin

March 26, 2018



          NANCY JOSEPH, United States Magistrate Judge

         Keith Bohannon, a prisoner in Wisconsin custody, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Bohannon was convicted of felony murder, as party to a crime and was sentenced to seventeen years of imprisonment to be followed by eight years of extended supervision. (Docket # 10.) Bohannon alleges that his conviction and sentence are unconstitutional. For the reasons stated below, the petition for writ of habeas corpus will be denied and the case dismissed.


         A Milwaukee County jury found Bohannon guilty of felony murder, as party to a crime. The conviction stems from allegations that Bohannon planned and set up his friend Jordan Larson to be robbed by another friend, Antonio Tatum. During the armed robbery, Tatum shot and killed Larson. (Ex. 1, State v. Bohannon, 2012AP1691 (Wis. Ct. App. June 4, 2013), Docket # 20-1.) After his conviction, Bohannon filed a direct appeal in which he challenged the denial of his motion to substitute judge, the trial judge limiting the length of the audio recording introduced at trial, and the sufficiency of the evidence to convict. (Id.)

         The Wisconsin Court of Appeals affirmed Bohannon's conviction on June 4, 2013. (Id.) The Wisconsin Supreme Court denied review on December 6, 2013. (Docket # 10.)

         Bohannon filed an amended petition in this Court on March 10, 2015. (Docket # 10.) Grounds One, Two, and Three asserted ineffective assistance claims and Ground Four alleged that his conviction was not supported by sufficient evidence. On May 14, 2015, Bohannon's petition was stayed and held in abeyance while he returned to state court to exhaust Grounds One, Two, and Three of his petition. (Docket # 11.) Bohannon was instructed to make a reasonably diligent effort to seek post-conviction relief in the Wisconsin state courts and to inform this Court as to how he wished to proceed once he completed a full round of state review. (Docket # 11.) After not hearing from Bohannon for more than two years, on February 27, 2018, I requested a status from the parties. On March 7, 2018, Bohannon responded that he will abandon his ineffective of assistance of counsel claims and proceed with his sufficiency of evidence claim (Ground Four). (Docket # 17.)


         Bohannon's petition is governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Under AEDPA, a writ of habeas corpus may be granted if the state court decision on the merits of the petitioner's claim (1) was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” 28 U.S.C. § 2254(d) (1); or (2) “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)(2).

         A state court's decision is “contrary to . . . clearly established Federal law as established by the United States Supreme Court” if it is “substantially different from relevant [Supreme Court] precedent.” Washington v. Smith, 219 F.3d 620, 628 (7th Cir. 2000) (quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)). The court of appeals for this circuit recognized the narrow application of the “contrary to” clause:

[U]nder the “contrary to” clause of § 2254(d)(1), [a court] could grant a writ of habeas corpus . . . where the state court applied a rule that contradicts the governing law as expounded in Supreme Court cases or where the state court confronts facts materially indistinguishable from a Supreme Court case and nevertheless arrives at a different result.

Washington, 219 F.3d at 628. The court further explained that the “unreasonable application of” clause was broader and “allows a federal habeas court to grant habeas relief whenever the state court ‘unreasonably applied [a clearly established] principle to the facts of the prisoner's case.'” Id. (quoting Williams, 529 U.S. at 413).

         To be unreasonable, a state court ruling must be more than simply “erroneous” and perhaps more than “clearly erroneous.” Hennon v. Cooper, 109 F.3d 330, 334 (7th Cir. 1997). Under the “unreasonableness” standard, a state court's decision will stand “if it is one of several equally plausible outcomes.” Hall v. Washington, 106 F.3d 742, 748-49 (7th Cir. 1997). In Morgan v. Krenke, the court explained that:

Unreasonableness is judged by an objective standard, and under the “unreasonable application” clause, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.”

232 F.3d 562, 565-66 (7th Cir. 2000) (quoting Williams, 529 U.S. at 411), cert. denied, 532 U.S. 951 (2001). Accordingly, before a court may issue a writ of habeas corpus, it must determine that the state court decision was both incorrect ...

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