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Evers v. Foster

United States District Court, E.D. Wisconsin

June 22, 2018

JEFFREY F. EVERS, Petitioner,
v.
BRIAN FOSTER, Respondent.

          ORDER

          J. P. Stadtmueller U.S. District Judge

         1. INTRODUCTION

         On August 14, 2014, a jury in the Milwaukee County Circuit Court found Petitioner Jeffrey F. Evers (“Evers”) guilty of kidnapping and first degree sexual assault using a dangerous weapon. (Docket #1 at 2). Evers had forced a woman to drive him around at gunpoint for a while and eventually raped her. On September 30, 2014, he was sentenced to twenty years' imprisonment to be followed by ten years of supervised release. Id. Evers sought to appeal but his counsel filed a no-merit report. His conviction was summarily affirmed on January 25, 2017. Id. at 3. Evers' subsequent petition for review to the Wisconsin Supreme Court was denied on May 15, 2017. Id. Evers filed the instant petition for a writ of habeas corpus on August 22, 2017. Id. In accordance with the Court's briefing schedule, Evers filed a brief in support of his petition on February 7, 2018. (Docket #18). Respondent submitted his brief in opposition on May 9, 2018. (Docket #22). Evers filed a reply on June 7, 2018. (Docket #23). For the reasons explained below, Evers' petition must be denied.

         2. BACKGROUND

         As noted above, Evers appealed his convictions and his appellate counsel filed a no-merit report. See (Docket #16-2). A no-merit report is permitted under Wisconsin law when appointed counsel concludes that an appeal would be “frivolous and without any arguable merit.” Wis.Stat. § 809.32(1)(a) (citing Anders v. California, 386 U.S. 738 (1967)). The report must “identify anything in the record that might arguably support the appeal and discuss the reasons why each identified issue lacks merit.” Id. Evers filed multiple responses to the no-merit report. See (Docket #16-3 and #16-4). He claimed that his trial counsel provided ineffective assistance to him on for numerous grounds:

(1) [F]ailing to investigate the credibility of the victim,
(2) failing to impeach the victim with a recording of her 911 call,
(3) failing to move for a mistrial due to the victim's unwillingness to answer certain questions on cross-examination,
(4) failing to investigate the credibility of the codefendant who testified for the State,
(5) failing to impeach the testimony of Officer Karla Lehmann about the victim's statement to another officer that no one forced her into Evers' car,
(6) failing to explain the concept of lesser-included offenses to him, and
(7) failing to obtain bank records of the victim revealing her ATM transactions on the night in question.

State of Wisconsin v. Jeffrey F. Evers, 2015-AP-2592-CRNM, 2017 WL 389844, at *2 (Wis. Ct. App. Jan. 25, 2017) ...


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