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Cook v. Pollard

United States District Court, E.D. Wisconsin

May 17, 2018

TEREZ L. COOK, Petitioner,
v.
WILLIAM POLLARD, Respondent.

          DECISION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

          NANCY JOSEPH, United States Magistrate Judge

         Terez Cook, a prisoner in Wisconsin custody, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Cook was convicted of armed robbery, armed burglary, three counts of false imprisonment, battery, theft, and mistreatment of an animal causing death, all as party-to-the-crime and as a repeat offender. Cook was sentenced to forty years imprisonment followed by eighteen years of extended supervision. (Habeas Pet. at 2, Docket # 1.) Cook 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.

         BACKGROUND

         A Marinette County jury found Cook guilty on January 27, 2006 of armed robbery, armed burglary, three counts of false imprisonment, battery, theft, and mistreatment of an animal causing death, all as party-to-the-crime and as a repeat offender. (Habeas Pet. at 2.) Cook received sentences totaling fifty-eight years, consisting of forty years of initial The convictions stem from allegations that Cook participated in an armed home invasion. (State v. Cook, 2010AP3143 (Wis. Ct. App. Mar. 27, 2012), Answer, Ex. B at 2, Docket # 36-2.) The relevant facts are taken from the decision of the Wisconsin Court of Appeals. Two armed men, one armed with a hand gun, apparently believing rumors that a large quantity of marijuana could be found at the Harper residence in Peshtigo, entered the house, battered Jimmy Harper, shot the family dog, bound Jimmy, Margaret, and Molly Harper with duct tape, and stole Sony speakers belonging to Justin Harper. (Id.) Jimmy and Margaret Harper could not describe the assailants; however, their daughter, Molly, provided a general description stating that she believed the assailants were two black men. (Id.)

         When the assailants left the Harper residence, they ran the car into the ditch. (Id.) The police determined that the car was related to the home invasion when they found the speakers in the car. (Id. at 2-3.) The police determined that the car belonged to Ashley Sadowski and when officers questioned Sadowski and her friend, Jessica Babic, the women admitted their roles in the crimes. (Id. at 3.) Sadowski and Babic admitted they went to a Walmart store with John Egerson and his friend, who was only introduced by the nicknames “Rex” and “BN.” (Id.) The women bought gloves, bandanas, and duct tape. (Id.) The women then drove Egerson's car to the Harper residence with the men following in Sadowski's car. (Id.) The men gave the women Egerson's cell phone and one of his accomplice's cell phones. (Id.) “Rex” kept his other cell phone to call the women when they were finished. (Id.) The women then drove to a park and waited for the men to contact them. (Id.) The men ran Sadowski's car into the ditch and they called the women to take them from the scene. (Id.)

         The police learned of the cell phone calls and discovered that the calls came from a phone owned by Stacy Thede, who told the police that she purchased the phone for her boyfriend, Terez Cook. (Id.) Cook, who was present at Thede's apartment, was taken into custody. (Id.) The detectives showed Cook's picture to Sadowski and Babic and they identified him as Egerson's accomplice in the home invasion. (Id.) The detectives also took a DNA swab that matched the DNA found on a cigarette in Sadowski's car. (Id.) Cook eventually admitted that he was in Peshtigo and was with Egerson, Sadowski, and Babic at the Walmart and after the home invasion, but denied being the fourth perpetrator. (Id.)

         At trial, Sadowski and Babic both identified Cook as the other home invader. (Id. at 4.) Margaret Harper also testified that she recognized Cook when she saw him on the morning of trial because she had a “flashback” and recognized him as one of the assailants by his eyes. (Id.)

         Cook's defense was that another individual, David Hall, not Cook, was Egerson's accomplice in the home invasion. (Id.) Cook's attorney showed the jury a picture of Hall to demonstrate his similarities to Cook. (Id.) Babic testified that Hall did not know about the plan to rob the Harpers and that she did not see him with a gun that night when he went to her house about two hours before the robbery to pick up some movies. (Id.) When Cook's attorney asked Sadowski on re-cross examination whether Hall had a gun that night of the burglary, the government objected on the ground that the issue was not brought up on redirect and Cook's attorney withdrew the question. (Id.)

         After his conviction, Cook filed a direct appeal. The Wisconsin Court of Appeals affirmed his conviction on July 29, 2008. (State v. Cook, 2007AP521 (Wis. Ct. App. July 29, 2008), Exh. to Habeas Petition, Docket # 1-1.) The Wisconsin Supreme Court denied review. Cook subsequently filed a Wis.Stat. § 974.06 motion for postconviction relief in the circuit court collaterally attacking his conviction on the grounds of ineffective assistance of trial counsel. (Docket # 62-7.) An evidentiary hearing was held. At the hearing, Sadowski testified that Hall often carried a gun, but she did not see him with a gun at Babic's house that night. (Docket # 36-2 at 4.) Hall testified at the hearing and admitted to being at Babic's home, but denied having a gun or knowing anything about the home invasion. (Id.) He admitted to knowing Egerson and testified that he picked up the women the next day when they called him for a ride. (Id.) Hall testified that he never went to the Harper home with Sadowski prior to the burglary, contradicting Sadowski's testimony that they had gone to the Harper home on previous occasions to look the place over because of the rumor that there was $30, 000 worth of marijuana in the Harpers' garage. (Id.)

         The trial court granted collateral relief and ordered a new trial on October 29, 2010 after determining that trial counsel was ineffective in several respects. (Exh. to Habeas Petition, Docket # 1-1 at 10.) The State of Wisconsin appealed and the court of appeals reversed the order for a new trial in a decision dated March 27, 2012. (Docket # 36-2.) The supreme court denied review on September 27, 2012. (Docket # 36-3.)

         Cook filed a petition for federal habeas corpus on August 15, 2013, raising four grounds for relief: a due process violation based on the Wisconsin Court of Appeals reversing the trial court's grant of a new trial; ineffective assistance of trial counsel; newly discovered evidence; and ineffective assistance of post-conviction and appellate counsel. (Docket # 1.) Cook's habeas proceedings were stayed on February 13, 2014 so that Cook could exhaust his state court remedies with respect to his newly-discovered evidence claim. (Docket # 11.) The stay was lifted on February 13, 2015 and the respondent subsequently filed a motion to dismiss on the grounds that the petition was untimely. (Docket # 29.) I denied the respondent's motion on August 5, 2015 and ordered the respondent to file an answer and the parties to brief the petition. (Docket # 35.)

         STANDARD OF REVIEW

         Cook'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 and unreasonable. Washington, 219 F.3d at 627.

         ANALYSIS

         Although Cook raises four grounds for relief in his habeas petition, in his briefs in support of the petition, Cook focuses his argument on the first two grounds: (1) that his due process rights were violated when the Wisconsin Court of Appeals reversed the trial court's decision granting him a new trial on a ground not raised by the State on appeal and (2) that the Wisconsin Court of Appeals' decision reversing the trial court's grant of a new trial based on ineffective assistance of trial counsel was contrary to federal law as determined by the Supreme Court and was based on an unreasonable determination of the facts in light of the evidence presented. I will address each in turn.

         1. Due Process Violation

         Cook argues that his right to due process of law was violated when the Wisconsin Court of Appeals reversed the decision of the trial court granting Cook a new trial on grounds not raised or briefed by the parties. (Petitioner's Br. at 3, Docket # 43.) Cook argues that on appeal, the government argued that the trial court erred in finding that Cook's post-conviction counsel was ineffective; whereas the court of appeals decided the issue of whether Cook's trial counsel was ineffective. (Id. at 25.) Cook argues that because the government did not raise the issue of ineffective assistance of trial counsel, he was denied notice and the ability to be heard on the issue. (Id. at 26.)

         Cook retained Attorney Milton Childs to represent him on any appeal or post-conviction motions pursuant to Wis.Stat. § 974.02 and § 809.30. (Docket # 36-10 at 7.) As Cook argued in his brief before the trial court asking for a new trial, procedurally, the trial court needed to decide the threshold question of the ineffectiveness of post-conviction counsel before it could reach the issue of ineffectiveness of trial counsel. (Id. at 5-6.) Cook noted in his motion that on direct appeal, Attorney Childs raised several claims of ineffective assistance of trial counsel without first raising the claims before the trial court via a Wis.Stat. § 974.02 motion. (Id. at 7.) State v. Escalona-Naranjo, 185 Wis.2d 168, 517 N.W.2d 157 (1994) bars a defendant from bringing a Wis.Stat. § 974.06 claim that could have been raised under Wis.Stat. § 974.02.

         However, Wis.Stat. § 974.06(4) provides that a defendant may raise a claim if the court finds a “sufficient reason” for why the claim was not previously asserted. Cook argued to the trial court that Attorney Childs' failure to file a post-conviction motion on the ineffective assistance of trial counsel prior to raising the issue on appeal was sufficient grounds to allow the court to consider the issue. In other words, Childs' ineffective assistance excused the Escalona bar. Cook alternatively argued that if the court found that Childs' failure to file a postconviction motion did not excuse the Escalona bar, then the court should find that the issues raised by Childs in his appellate brief were significantly less important and less likely to be successful than the issues raised in the § 976.06 motion. (Id. at 9-10.)

         During the August 30, 2010 Machner hearing, the trial court stated that Attorney Childs was “highly ineffective” because “we're having a hearing right now that should have been held three and a half years ago”; thus, the court stated that it was “automatic that [Childs] did not know how to present the ineffective assistance of counsel issue and have a Machner hearing to be able to adequately take those issues to the Court of Appeals.” (Transcript of Aug. 30, 2010 Machner[1] hearing at 208-209, Docket # 62-8.) The trial court asked the State whether it agreed and the State responded that it had not considered the issue and would not concede it. (Id. at 209.)

         At the October 29, 2010 Machner hearing, the State did not dispute the ineffectiveness of post-conviction/appellate counsel, stating “As to Mr. Childs, I agree with you, we should have been doing the ineffective assistance of counsel motion several years ago.” (Transcript of Oct. 29, 2010 Machner hearing at 144, Docket # 62-10.) The trial court reiterated that Attorney Childs should have filed a motion raising ineffective assistance of trial counsel years before and noted that counsel “put us in a very bad position, ” and then went on to address the ineffective assistance of trial counsel issue. (Id. at 144-45.) Thus, meeting the threshold requirement, the trial court went on to address the underlying issue of the ineffective assistance of trial counsel.

         In its brief before the court of appeals, the State challenged the trial court's finding that Attorney Childs was ineffective, but also challenged the six grounds on which the trial court found trial counsel's performance deficient. (Docket # 36-4 at 18-46.) Similarly, Cook, in his brief before the court of appeals, addressed the issue of trial counsel's ineffectiveness. (Docket # 36-5 at 37-48.)

         In its decision, the court of appeals did not address the trial court's finding that Attorney Childs was ineffective and instead addressed the six ways the trial court found that trial counsel was ineffective. (Docket # 36-2 at 1-2.) While Cook argues that the State's framing of the issue prevented him from properly briefing the issue, the State did, in fact, brief the ineffectiveness of trial counsel issue and Cook did, in fact, respond to the argument. Thus, I do not find Cook was denied due process. Further, to the extent that Cook argues that Attorney Childs was ineffective for failing to raise the ineffectiveness of trial counsel, because, as further discussed below, I do not find Cook is entitled to relief on his claim of ineffective assistance of trial counsel, it follows that Cook was not prejudiced by Attorney Childs' failure to challenge trial counsel's performance. See Warren v. Baenen, 712 F.3d 1090, 1105 (7th Cir. 2013); Johnson v. Thurmer, 624 F.3d 786, 793 (7th Cir. 2010) (“Because [petitioner's] appellate counsel claim is predicated on trial counsel's errors, the two claims rise and fall together.”). Thus, Cook is not entitled to habeas relief on this ground.

         2. Ineffective Assistance of Counsel

         The heart of Cook's claim for habeas relief is that his trial counsel, Attorney Alf Langan, was ineffective. As an initial matter, Cook argues that the court of appeals violated Strickland v. Washington,466 U.S. 668 (1984) by failing to properly defer to the trial court's factual findings. Cook argues that Wisconsin law requires the Wisconsin Court of Appeals to defer to the trial court's findings of fact unless the findings of fact are clearly erroneous. (Petitioner's Amended Reply Brief, Docket # 61.) This is not an argument that the court of appeals misapplied Strickland; rather, it is an argument that the court of appeals applied the wrong standard of review. To the extent Cook argues that the court of appeals applied the wrong standard of appellate review to his claims, he fails to state a claim for habeas relief. A federal habeas court's power to grant a writ of habeas corpus only extends to errors in the application of federal law. See Estelle v. McGuire,502 U.S. 62, 67-68 (1991). A state court's alleged failure ...


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