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Holifield v. Mitchell

United States District Court, E.D. Wisconsin

May 31, 2018

AL HOLIFIELD, Petitioner,
v.
GARY MITCHELL, [1] Respondent.

          REPORT AND RECOMMENDATION

          WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE.

         I. Procedural History

         Al 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.)

         The 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 have consequences.

         II. Standard of Review

         A 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. § 2254(d)(1), (2)).

         III. Analysis

         In his 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)).

         A. Search Warrant

         On 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 McDonald's restaurant.

         Holifield 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 the warrant.

         The 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.

         The 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.

         Holifield 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).

         Nor was 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.

         Nor did 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.

         Even if 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)).

         Finally, Holifield had an extensive arrest history, including numerous arrests related to drugs.

         Taken together, these facts added up to probable cause to search the target residence for evidence of drug dealing.

         It is 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 ...


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