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Bowens v. Pollard

United States District Court, E.D. Wisconsin

March 29, 2018

JAMIE BOWENS, Petitioner,
v.
WILLIAM POLLARD, Respondent.

          DECISION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DISMISSING CASE

          NANCY JOSEPH, United States Magistrate Judge

         Jamie Bowens, a prisoner in Wisconsin custody, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Bowens is serving a sentence of life without the possibility of extended supervision for first degree intentional homicide, and a concurrent ten year life sentence for felon in possession of firearm. (Am. Habeas Petition, Docket # 11.) Bowens alleges that his conviction and sentence are unconstitutional. For the reasons stated below, the petition for writ of habeas corpus will be denied.

         BACKGROUND

         On March 7, 2007, Bowens was charged with first degree intentional homicide and with being a felon in possession of a firearm. As to the felon in possession of a firearm charge, Bowens waived his right to a jury trial and was found guilty by the trial judge. (Answer, Exh. 1, Judgment of Conviction, Docket #20-1 at 1.) Bowens proceeded to jury trial on the first degree intentional homicide count. At trial, the State presented four eyewitnesses who testified that Bowens fatally shot Jadrian Parker over a dispute about a gun that Parker had failed to return to Bowens. (Answer, Exh. 3, State v. Bowens, 2009AP1135, (Wis. Ct. App. May 25, 2010), Docket #20-5 at 3.) Two additional witnesses testified that Bowens confessed the murder to them. (Id. at 5.) Other circumstantial evidence, cell phone records, and bullet casings linked Bowens to the crime. (Id.)

         For the defense part, during opening statement, trial counsel stated that Bowens denied being involved in this incident and stated that an alibi defense would be presented (Answer Exh. 15, Docket #20-15, Jury Trial Transcript from January 22, 2008 P.M., Docket 20-15 at 66-70.) Both Bowens' aunt, Latoya Bowens and the mother of his child, Yvette Taylor, testified that Bowens was at home preparing for his daughter's birthday party. (Answer, Exh. 17, Jury Trial Transcript from Jan. 23, 2008 P.M., Docket #20-17 at 89-90, 93-94, 109-110.) However, the first defense witness to testify, Jennifer Garcia, identified Bowens as the person who shot Parker. (Id. at 82-82.) On January 24, 2008, a Milwaukee County jury convicted Bowens of first-degree intentional homicide. (Docket #20-1 at 2.)

         Bowens' challenge to his conviction is procedurally lengthy and complex. First, Bowens filed a postconviction motion arguing that his trial counsel was ineffective for calling Jennifer Garcia to testify at trial and eliciting testimony from her that Bowens was the man who shot and killed the victim. (Docket #20-5 at 1-2.) The circuit court denied the motion (Id.)

         Bowens appealed his conviction and the circuit court's order denying his postconviction motion. (Id. at 2.) In a May 25, 2010 decision, the Wisconsin Court of Appeals rejected Bowens' claim on the merits and affirmed the circuit court's judgment of conviction and order denying Bowens' postconviction motion. (Id. at 8.) On October 27, 2010, the Wisconsin Supreme Court declined further review. (Answer, Exh. 8, Docket # 20-8.)

         On January 23, 2012, Bowens filed a petition for writ of habeas corpus. He also filed a motion to stay his petition in order to present unexhausted claims to the state courts. The stay was granted on February 28, 2012. (Docket # 6.) In January 2012, Bowens filed a Wis.Stat. § 974.06 postconviction motion in the circuit court in which he raised the following claims: (1) that trial counsel was ineffective for failing to use Garcia's prior inconsistent statements after she testified that Bowens was the man who shot and killed the victim; (2) that trial counsel was ineffective for failing to call a ballistics expert; (3) that trial counsel was ineffective for failing to request a lesser included homicide instruction; and (4) that appellate counsel was ineffective for failing to raise the ineffective assistance of trial counsel claims in Bowens' direct appeal. (Answer, Exh. 10, Docket # 20-10 at 6.) The circuit court denied Bowens' motion. (Answer, Exh. 12, State v. Bowens, 2012AP2488 (Wis. Ct. App. Feb. 4, 2014), Docket # 20-12 at 3.) Bowens did not timely appeal. (Docket # 20-10 at 9, 23-24; Docket # 20-12 at 4-5.)

         In July 2012, Bowens filed a motion for reconsideration in the circuit court. (Docket # 20-12 at 3.) Bowens claimed for the first time that Bowens' trial counsel was ineffective in connection with plea negotiations. (Id.) The circuit court denied Bowens' motion for reconsideration on the ground that Bowens' new claims were procedurally barred under Wis.Stat. § 974.06(4) and State v. Escalona-Naranjo, 185 Wis.2d 168, 517 N.W. 157 (1994). (Docket # 20-10 at 7-8.) Bowens did not timely appeal. (Id. at 9, 23-24; Docket # 20-12 at 4-5.)

         In October 2012, Bowens filed a motion “for further review” of the order denying Bowens' motion for reconsideration. (Docket # 20-12 at 7.) He asked the circuit court to reconsider its decision denying his claim that trial counsel was ineffective in connection with plea negotiations. (Id. at 7-8.) The circuit court denied the motion. (Docket # 20-10 at 8). Bowens appealed. (Docket # 20-12 at 4.) On February 4, 2014, the Wisconsin Court of Appeals affirmed the circuit court's order. (Docket # 20-12.) On September 25, 2014, the Supreme Court declined further review. (Answer, Exh. 13, Docket # 20-13.) On December 12, 2014, Bowens filed this amended petition for writ of habeas corpus. (Docket # 11.)

         STANDARD OF REVIEW

         Bowens' amended 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 ...


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