United States District Court, E.D. Wisconsin
REPORT AND RECOMMENDATION
WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE.
Holifield is incarcerated pursuant to a judgment of the
Milwaukee County Circuit Court. Following a jury trial
Holifield was convicted of three counts of manufacture or
delivery of heroin, one count of possession of heroin, and
maintaining a drug trafficking place, all felonies. (ECF No.
12-2 at 2 (all numbering reflects the ECF pagination).) He
was also convicted of possession of THC and possession of a
controlled substance, both misdemeanors. (ECF No. 12-2 at 5.)
After unsuccessfully appealing his convictions Holifield
filed a petition for a writ of habeas corpus in this
district. (ECF No. 1.) The Honorable Pamela Pepper recently
referred Holifield's petition to this court for the
issuance of a report and recommendation as to its resolution.
(ECF No. 42.)
respondent opposes the petition. (ECF No. 23.) In doing so,
he submitted a 30-page single-spaced brief, with 89
footnotes, in opposition. The court's Local Rules require
that the text of all briefs be double-spaced. Gen. L. R.
5(a)(5) (E.D. Wis.). In Judge Griesbach's Rule 4 order
(ECF No. 6), citing Civil L.R. 7(f), he reminded the parties
that their opening briefs were not to exceed thirty pages.
Ironically, in his non-compliant brief counsel for the
respondent criticizes Holifield for submitting a two-part
brief that also exceeded the 30-page limit despite being
similarly single-spaced. (See ECF No. 23 at 2,
fn.2.) Ordinarily, courts will strike such non-compliant
briefs and order the parties to submit briefs that comply
with the local rules. Some judges may impose sanctions if the
non-compliance appeared intentional. However, given the
posture of this case, the court will not take any action
here. The court raises the issue only as a warning that a
failure to follow the local rules and the court's
explicit orders regarding the length and format of brief may
Standard of Review
federal court may consider habeas relief for a petitioner in
state custody “only on the ground that he is in custody
in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. §2254(a). Following the
passage of the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), a federal court generally may
grant habeas relief only if the state court decision was
“either (1) ‘contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,
' or (2) ‘based on an unreasonable determination of
the facts in light of the evidence presented in the State
court proceeding.'” Miller v. Smith, 765
F.3d 754, 759-60 (7th Cir. 2014) (quoting 28 U.S.C. §
Rule 4 order Judge Griesbach identified ten claims in
Holifield's habeas petition. Several of them allege that
Holifield's trial counsel was ineffective in one way or
another. To prevail on such a claim a petitioner must show
both that his attorney's performance was deficient and
that he was prejudiced as a result. Perrone v. United
States, No. 16-2437, 2018 U.S. App. LEXIS 12465, at *22
(7th Cir. May 14, 2018) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). “On the
performance prong, he ‘must overcome the strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.'”
Id. (quoting Wyatt v. United States, 574
F.3d 455, 458 (7th Cir. 2009) (internal quotation marks
omitted)). “On the prejudice prong, he must show that
‘but for counsel's errors, there is a reasonable
probability that the result would have been
different.'” Id. (quoting United
States v. Graf, 827 F.3d 581, 584 (7th Cir. 2016)).
“As with the first prong, there is a presumption that
the petitioner has not suffered prejudice.”
Id. (citing Graf, 827 F.3d at 584-85).
Thus, the court's review of an ineffective assistance of
counsel claim is “doubly deferential” when
presented in a petition for a writ of habeas corpus.
Washington v. Boughton, 884 F.3d 692, 701 (7th Cir.
2018) (quoting Hinesley v. Knight, 837 F.3d 721, 732
(7th Cir. 2016)).
September 1, 2010, Investigator Jon Rivamonte of the
Milwaukee Metro Drug Enforcement Group applied for a search
warrant for a single-family house in the city of Milwaukee.
Rivamonte submitted a seven-page affidavit in support of the
request for a search warrant. According to the affidavit,
Rivamonte worked with a confidential informant, who completed
three drug purchases from Holifield-on August 11, August 16
and August 31, 2010. The affidavit stated that to arrange
each sale, the confidential informant called Holifield in
Rivamonte's presence and arranged to meet at a particular
alleges the search warrant was unlawful for a variety of
reasons: because it was based on unsworn statements of an
informant, because it was dated August 31, 2010 even though
the affidavit was dated September 1, 2010, and because
another officer involved in the investigation administered
the oath in connection with the affidavit. (ECF No. 1 at
6-7.) He also alleges that the affidavit contained false and
misleading information as to Holifield's residence and
who owned that property. (ECF No. 1-1 at 1.) Holifield
alleges that his attorney was ineffective because she failed
to file a motion to suppress evidence obtained pursuant to
court has independently reviewed the search warrant (ECF No.
2-1 at 35-41) and finds that, even accepting as true
Holifield's arguments as to alleged errors and misleading
information, the affidavit nonetheless established probable
cause to search the target residence. Cf. Franks v.
Delaware, 438 U.S. 154, 156 (1978). As such, a motion to
suppress would have been unsuccessful. Consequently, because
it was neither unreasonable nor prejudicial for counsel to
forego the motion, Holifield's attorney was not
ineffective for not filing such a motion. See
Strickland, 466 U.S. at 691-92.
investigation involved three controlled buys of heroin. The
same suspected seller (identified in the warrant as
Holifield, but for present purposes the court will accept
Holifield's argument that investigators had not
adequately identified Holifield at that time) was observed by
law enforcement as being involved in each sale. Immediately
following the second controlled buy, the suspected seller
went to the residence that the officers sought a warrant to
search. Immediately before the third controlled buy, the
suspected seller went to the target residence, entered the
house briefly, and then drove to the meeting with the
informant, where he exchanged heroin for cash. These
observations were consistent with the suspected seller using
the target residence to store controlled substances and the
proceeds of their sale.
points to numerous alleged deficiencies in the search warrant
(ECF No. 14-1 at 2-8), but all are inconsequential. For
example, it was not necessary for the affidavit to establish
that Holifield had control over the residence in order for
officers to obtain a warrant to search it. In any event, as
the affidavit recounts, Holifield identified the home as his
residence at the time of at least one prior arrest and in
Wisconsin Department of Transportation records. Moreover, it
was the address listed on the criminal complaint (ECF No. 2-1
at 69), and at his initial appearance Holifield stated,
through counsel, “His address is the same one as the
one listed in the criminal complaint …” (ECF No.
12-3 at 324).
it necessary for the affidavit to state, as Holifield says it
should have, that Holifield was observed to “leave
directly from the residence and then return directly back
home like in other controlled buys cases.” (ECF No.
14-1 at 2.) Probable cause may be supported by reasonable
inferences. Although officers could have recorded the
controlled buys or done a traffic stop to identify the
persons in the vehicle, they were not required to do so.
the affidavit omit anything essential with respect to the
informant. Given the nature of the informant's
involvement, it was unnecessary for Rivamonte to establish at
length the reliability of the informant or show that the
informant had known Holifield before the controlled buys. The
investigators were not simply relying on the word of an
informant as, for example, when officers seek a warrant to
search a home based solely on an informant telling them that
he saw contraband there. Rather, the information from the
informant was independently corroborated by the officers'
monitoring of the calls and their observations of the
controlled buys. The fact that the informant did not
personally know Holifield (but rather contacted him only
because he was given Holifield's number from a friend)
did not undermine probable cause. And an informant is not
required to appear before the issuing court commissioner or
offer sworn testimony in support of the warrant.
the informant's identification of Holifield was suspect,
law enforcement apparently independently observed and
identified Holifield. Moreover, law enforcement were aided by
other facts, including that Holifield had identified the
target residence as his residence on Department of
Transportation records and previously to law enforcement.
“[I]n the case of drug dealers, evidence is likely to
be found where the dealers live.” United States v.
Sewell, 780 F.3d 839, 846 (7th Cir. 2015) (quoting
United States v. Kelly, 772 F.3d 1072, 1080 (7th
Cir. 2014) (emphasis omitted)).
Holifield had an extensive arrest history, including numerous
arrests related to drugs.
together, these facts added up to probable cause to search
the target residence for evidence of drug dealing.
true that the search warrant contains an obvious error
regarding the date. At the bottom of the warrant, handwritten
is “11:03 AM” followed by the typed date of
“A ugust 31st, 2010, ” suggesting that that was
the date and time the court commissioner signed the warrant.
(ECF No. 2-1 at 34.) However, at the top of warrant
“09/1/2010” is typed as the date. (ECF No. 2-1 at
34.) And the jurat of the affidavit states, “Subscribed
and sworn to before me this 1st day of September,
2010.” (ECF No. 2-1 at 41.) Holifield ...