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LeFlore v. Dittman

United States District Court, W.D. Wisconsin

April 26, 2018

MARIO LEFLORE, Petitioner,
v.
MICHAEL DITTMAN, Warden, Columbia Correctional Institution, Respondent.

          ORDER

          STEPHEN L. CROCKER Magistrate Judge

         Mario LeFlore, an inmate at Columbia Correctional Institution, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and has paid the $5 filing fee. LeFlore challenges his April 25, 2008 judgment of conviction in the Circuit Court for Dane County for burglary, armed robbery, kidnapping, false imprisonment, and two counts of first degree sexual assault. The petition, which LeFlore has supported with a brief and numerous exhibits (dkt. #2), is before the court for preliminary review pursuant to Rule 4 of the Rules Governing Section 2254 Cases. Rule 4 provides that when conducting this review,

[i]f it plainly appears from 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, or to take other action the judge may order.

         During the court's initial review of habeas petitions, it looks to see whether the petition is timely, whether the petitioner sets forth cognizable constitutional or federal law claims, and whether the petitioner has exhausted available state remedies. Further, the petition must cross “some threshold of plausibility” before the state will be required to answer. Harris v. McAdory, 334 F.3d 665, 669 (7th Cir. 2003); Dellenbach v. Hanks, 76 F.3d 820, 822 (7th Cir. 1996). Because LeFlore's petition appears plainly to be untimely, the court will not order the state to answer the petition at this time but will direct LeFlore to file a supplement establishing that his petition is timely or that his default should be excused.

         The following facts are drawn from the petition, its attachments and the state court docket sheet related to LeFlore's criminal proceeding, which is available at https://wcca.wicourts.gov (last visited April 24, 2018).

         BACKGROUND FACTS

         The charges for which LeFlore was convicted arose from an alleged incident in which he broke into the apartment of JLK, forced her at knifepoint to have sex with him and stole her laptop computer. A jury found LeFlore guilty of all counts, and he was sentenced on April 25, 2008, to 40 years incarceration followed by 24 years extended supervision. On June 19, 2008, he filed a notice of intent to file postconviction relief pursuant to Wis.Stat. § 974.02, which in Wisconsin is a precursor to filing an appeal with the Wisconsin Court of Appeals. In November 2008, LeFlore's lawyer filed a motion for sentence modification, which the trial court denied on January 23, 2009.

         On January 26, 2009, LeFlore's appointed lawyer sent LeFlore a letter stating that there was no meritorious basis for an appeal, and enclosing a form that advised LeFlore of his option to have the lawyer file a no-merit report. Asked to choose between having his lawyer “close [the] file without any further action” or “file a No. Merit Report with the Court of Appeals, ” LeFlore selected the first option. (Dkt. #2, exh.2, at 15-16.) No. appeal was filed and the record indicates that nothing happened on LeFlore's case for five years.

         In April 2014, LeFlore filed a motion with the Wisconsin Court of Appeals to reinstate his appeal rights, arguing that his lawyer had dropped the ball in 2009 by not filing an appeal. (Id. at 17-19.) LeFlore asserted that he had discovered a letter in his trial lawyer's file from an expert witness whom LeFlore said would have countered one of the state's expert witnesses, but his lawyer never called the expert to testify. He further asserted that after moving unsuccessfully for sentence modification, his post-conviction lawyer “abandoned” him “without any further advice or discussion about his appeal rights or options.” (Id. at 18). LeFlore did not provide any further details about his post-conviction lawyer's actions.

         The state appellate court construed the motion as a habeas petition and told LeFlore that he needed to file a supporting memorandum by June 18, 2014 or his petition would be dismissed. (Id. at 22). On June 19, 2014, the court granted LeFlore's request for an extension, allowing him an additional 90 days to file a memorandum. (Id. at 22). On December 30, 2014, the court issued an order noting that LeFlore had never filed a supplemental memorandum, but it nonetheless directed the state to respond to the petition. (Id. at 23.) After considering the state's response, on November 18, 2015, the court of appeals agreed with the state that LeFlore's conclusory, one-sentence assertion that his appellate lawyer “abandoned” him was insufficient to warrant an evidentiary hearing under State v. Allen, 2004 WI 106, ¶¶9, 36, 274 Wis.2d 568, 682 N.W.2d 433. (Id. at 31-33.) Accordingly, the court denied the petition. LeFlore later filed a petition for review with the Wisconsin Supreme Court, but it was dismissed as untimely. Id. at 53.

         LeFlore filed the instant petition for federal habeas relief on December 12, 2016. He seeks relief on the grounds that his trial lawyer was ineffective for failing to present evidence that he says exonerates him of the sexual assault counts, and that his appellate lawyer was ineffective for failing to pursue this claim and instead abandoning him on appeal.[1] LeFlore presents two pieces of evidence that he says his lawyer knew about and which proves that he did not break into JLK's apartment and sexually assault her: (1) a DNA analysis from the Wisconsin Crime Lab (dkt. #2, at 5), which analyzed DNA from two used condoms recovered from the victim's apartment and found LeFlore's DNA on the outside of one condom, but not on the inside of either; and (2) a report from Officer Sheila Monroe stating that she had found no match for a latent fingerprint she had recovered from the door handle to JLK's bedroom (Id. at 13). LeFlore says the DNA evidence exonerates him because JLK told police that LeFlore had used two condoms (the first one ripped) during the assault, which would mean that his DNA ought to have been on the inside of the condoms. The fact that it was on the outside of one of the condoms, he says, is consistent with his version of events, which is that he and JLK had consensual, unprotected sex. Monroe's report exonerates him, he says, because JLK told police that LeFlore opened the bedroom door to leave. If this was true, he argues, then his fingerprint would have been found on the bedroom door handle. LeFlore does not state in his petition when he learned of this evidence.

         REVIEW OF THE PETITION

         There are a number of problems with the petition. As an initial matter, the evidence petitioner presents falls far short of “exonerating” him, as he claims. The absence of a fingerprint match on JLK's bedroom door handle shows only that he did not leave a latent fingerprint on the door handle. It is not proof that he was not there or that JLK's story was false.

         More curious is the DNA evidence, which, viewed in the light most favorable to petitioner on the very limited record before the court, could raise some questions about JLK's veracity. The report alone, however, is not the smoking gun that petitioner thinks it is. Simply because part of JLK's story may not have been true or correct does not mean that her entire report to the police was fabricated. Further, it is unclear how JLK testified at trial or whether there were other witnesses who corroborated her version of events. Without more details about the evidence that was presented at ...


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