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O'Boyle v. Humphreys

United States District Court, E.D. Wisconsin

May 11, 2018

RYAN P. O'BOYLE, Petitioner,
v.
ROBERT HUMPHREYS, Respondent.

          ORDER

          WILLIAM C. GRIESBACH UNITED STATES DISTRICT JUDGE.

         Order Ryan O'Boyle was convicted in Milwaukee County Circuit Court of attempted second-degree intentional homicide and was sentenced to 8 years imprisonment. His conviction was affirmed by the Wisconsin Court of Appeals, as were the trial court's orders denying his two separate motions for post conviction relief. He is currently incarcerated at Kettle Moraine Correctional Institution.

         On February 4, 2016, O'Boyle filed an petition for federal habeas corpus relief from his state court conviction pursuant to 28 U.S.C. § 2254. O'Boyle v. Foster, No. 16-C-126. The petition was dismissed without prejudice on March 17, 2016, for failure to exhaust state court remedies as to all of his claims, and the case was closed. O'Boyle sought to reopen the case and reinstate his petition on December 11, 2017, but his request was denied and he was instructed to file his petition as a new case. He did so on December 13, 2017, and filed an amended petition on January 8, 2018. It is his amended petition that is currently before me.

         I must give the case prompt initial consideration pursuant to Rule 4 of the Rules Governing § 2254 Cases, which reads:

If it plainly appears from the face of 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. . . .

         Rule 4, Rules Governing § 2254 Cases. During my initial review of habeas petitions, I look to see whether the petitioner has set forth cognizable constitutional or federal law claims and exhausted available state remedies.

         “Habeas corpus petitions must meet heightened pleading requirements. . . .” McFarland v. Scott, 512 U.S. 849, 856 (1994) (citing 28 U.S.C. § 2254 Rule 2(c)). The petition must “specify all the grounds for relief available to the moving party, ” and “state the facts supporting each ground.” 28 U.S.C. § 2255, Rule 2(b); see also Borden v. Allen, 646 F.3d 785, 810 (11th Cir. 2011) (“The § 2254 Rules and the § 2255 Rules mandate “fact pleading” as opposed to “notice pleading, ” as authorized under Federal Rule of Civil Procedure 8(a).”). The reason for the heightened pleading requirement in habeas cases, as the Eleventh Circuit noted in Borden, is obvious:

Unlike a plaintiff pleading a case under Rule 8(a), the habeas petitioner ordinarily possesses, or has access to, the evidence necessary to establish the facts supporting his collateral claim; he necessarily became aware of them during the course of the criminal prosecution or sometime afterwards. The evidence supporting a claim brought under the doctrine set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), for example, may not be available until the prosecution has run its course. The evidence supporting an ineffective assistance of counsel claim is available following the conviction, if not before. Whatever the claim, though, the petitioner is, or should be, aware of the evidence to support the claim before bringing his petition.

646 F.3d at 810. Were the rule otherwise, federal habeas would be transformed into “a vehicle for a so-called fishing expedition via discovery, an effort to find evidence to support a claim.” Id. at 810 n. 31.

         In addition to the requirement that the petition allege facts that, if true, would entitled one to relief, the standard of review for petitions seeking relief under 28 U.S.C. § 2254 is narrow. A federal court is authorized to grant habeas corpus relief to a state prisoner only upon a showing that “he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The granting of such relief by federal courts is further limited by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which “significantly constrain any federal court review of a state court conviction.” Searcy v. Jaimeti, 332 F.3d 1081, 1087 (7th Cir. 2003). Under AEDPA, habeas corpus relief for persons serving sentences imposed by state courts may not be granted on any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the United States Supreme Court or (2) 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. 28 U.S.C. § 2254(d).

         O'Boyle asserts numerous grounds upon which he claims he is entitled to relief under § 2254. He claims that his trial counsel was ineffective in (1) failing to request jury instructions regarding eyewitness identification and impeachment; and (2) failing to object to the prosecutors closing argument. He claims that he was denied due process by law enforcement's failure to follow proper procedure in compiling the photo array from which the victim identified him as the person who had stabbed him. Next, O'Boyle claims that his Sixth Amendment right to confront the witnesses against him was violated when the trial court allowed hearsay evidence to be admitted at trial. O'Boyle claims that he was denied due process when the State was allowed to amend the information without leave of the court. He claims that he was provided ineffective appellate counsel when his appellate attorney failed to raise thirteen issues he thinks should have been raised on appeal. Finally, O'Boyle claims that the bailiffs assigned to his trial engaged in jury tampering, the court lacked jurisdiction over him and the judge unreasonably limited his questioning of a witness at a post conviction motion. It is clear from the face of the petition and the attachments thereto, including the thorough decision of the Wisconsin Court of Appeals, that none of O'Boyle's claims has merit. I will address only those claims that merit discussion and have not been procedurally defaulted.

         A. Ineffective Assistance of Trial Counsel

         1. Jury Instructions

         O'Boyle first argues the Wisconsin Court of Appeals unreasonably applied and unreasonably determined the facts in finding that his trial attorney was not ineffective in failing to request jury instructions regarding eyewitness identification and impeachment. A person charged with a crime has a Sixth Amendment right to the effective assistance of counsel at trial. To establish ineffective assistance of counsel, a defendant must show (1) counsel's representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that counsel's errors affected the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 687 (1984). Here, because the Court of Appeals applied the correct legal standard of Strickland to this claim, my review of its decision is “doubly deferential.” Cullen v. Pinholster,563 U.S. 170, 190 (2011). That is, I must first take “a ‘highly deferential' look at counsel's performance, ” id. at 172, in which “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690. Then, I must view the claim through the “deferential lens” of § ...


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