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Kahill v. Boughton

United States District Court, E.D. Wisconsin

January 24, 2019

CECIL T. KAHILL, Petitioner,
v.
GARY BOUGHTON, Respondent.

          DECISION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

          NANCY JOSEPH UNITED STATES MAGISTRATE JUDGE

         Cecil T. Kahill, a prisoner in Wisconsin custody, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Kahill alleges that his conviction for first-degree reckless injury by use of a dangerous weapon as an act of domestic abuse is unconstitutional. For the reasons stated below, the petition for writ of habeas corpus will be denied and the case dismissed.

         BACKGROUND

         Kahill was charged with attempted first-degree intentional homicide, first-degree reckless injury, and endangering safety, all by use of a dangerous weapon and as acts of domestic abuse, and one count of misdemeanor theft. (State v. Kahill, 2015AP963 (Wis. Ct. App. July 21, 2016), Answer, Docket # 13-1 at 3-4.) Pursuant to a plea agreement, Kahill pled guilty to one count of first-degree reckless injury by use of a dangerous weapon as an act of domestic abuse. (Id. at 4.)

         The facts as alleged by the State are as follows. Kahill had a history of domestic violence against his girlfriend R.R. (Id. at 3.) In 2012, R.R. began an online relationship with “James” after ending her relationship with Kahill, and she agreed to meet “James.” (Id.) The Court of Appeals summarized the events of January 2, 2013 as follows:

When she entered the lobby of her apartment complex, she encountered Kahill, who had been pretending to be “James.” They talked, and Kahill indicated he was afraid R.R. would disclose his ongoing unauthorized use of her mother's credit card. When R.R. attempted to walk away, Kahill seized her from behind, threatened to kill her and her family, and stabbed her repeatedly, breaking two knives in the process. Kahill next produced a gun and dragged R.R. at gunpoint to the basement of the apartment complex where he hid the broken knives. Kahill then moved R.R. outside. When police arrived, Kahill told them he did not know R.R. and that a “white guy” had stabbed her, but, after she was in the ambulance, she said Kahill was the attacker. During a search of the scene, police found two knife handles and a blade in the apartment complex basement and a loaded 40-caliber Glock handgun in the bushes.

(Id.)

         Kahill pled guilty to one count of first-degree reckless injury by use of a dangerous weapon as an act of domestic abuse. The circuit court sentenced Kahill to thirty years of imprisonment, consisting of twenty years of initial confinement and ten years of extended supervision. (Id. at 1-2.)

         After sentencing, Kahill moved to withdraw his plea, asserting that his trial counsel was ineffective. (Id. at 2.) Specifically, Kahill alleged that his trial counsel failed to explain to him that he had a defense to the charge of first-degree reckless injury. (Id. at 4.) According to Kahill, his trial counsel failed to explain that certain after-the-fact actions he took, including allowing R.R. to call 911, taking the phone himself to tell the dispatcher R.R. was dying, and staying with her at the scene, constituted a defense to the charge of first-degree reckless injury because the actions arguably showed he lacked one element of the crime: utter disregard for human life. (Id. at 4-5.)

         At a Machner hearing, Kahill's trial counsel testified that he discussed Kahill's after-the-fact actions with him, but he was not certain he discussed it with regard to the charge of first-degree reckless injury specifically. (Hearing Tr. at 7-8, Docket # 22-1 at 23-24.) At the time, he felt that Kahill's post-injury conduct had to be weighed against the countervailing evidence, including a trail of blood leading to the apartment building laundry room where the knives were concealed. (Hearing Tr. at 18-24, Docket # 22-1 at 34-40.) He stated:

I thought I could make the argument [about post-injury conduct indicating lack of utter disregard for human life] and there was a chance of being successful at trial. The countervailing evidence was there were multiple stab wounds to the neck, and the gun brought to the scene, the concealing of the knives in the laundry room. Those were things that I thought were working against us.

(Hearing Tr. at 21, Docket # 22-1 at 37.) He stated that the multiple stab wounds to the neck might “inflame the emotions of the jury and they may not care about all the things he did for her afterward. That's the risk.” (Hearing Tr. at 23, Docket # 22-1 at 39.) He thought it was unlikely that Kahill would be successful at trial. (Hearing Tr. at 24, Docket # 22-1 at 40.)

         Trial counsel testified that he had negotiated a more favorable plea deal with the prosecutor than the one she initially offered, ultimately reducing Kahill's potential sentence by at least twenty-five years of initial confinement and ten years of extended supervision. (Hearing Tr. at 25, Docket # 22-1 at 41.) He testified that Kahill had made the decision to take the plea deal, and he believed Kahill had done so because it was important to him to reduce his potential sentence. (Hearing Tr. at 25-26, Docket # 22-1 at 41-42.) He testified that he met with Kahill multiple times before the plea proceedings, generally for over an hour, and that while he didn't remember how long he spent going over the plea paperwork with Kahill, he generally takes between fifteen and thirty minutes to do so with a defendant. (Hearing Tr. at 26-27, Docket # 22-1 at 42-43.) He also testified that he reviewed the elements of first-degree reckless injury with Kahill in the context of doing the plea questionnaire. (Hearing Tr., Docket # 22-1 at 23-25.)

         Kahill testified that counsel never informed him that the after-the-fact actions would present an arguable defense to the charge of first-degree reckless injury, or that the jury would take them into consideration when assessing whether Kahill's actions showed utter disregard for human life. (Hearing Tr. at 34-35, Docket # 22-1 at 50-51.) Kahill also testified that when he went through the plea questionnaire he did not see the jury instructions, and his attorney did not read them to him. (Hearing Tr. at 36-37, Docket # 22-1 at 52-53.) He testified that when he had affirmed to the judge that he understood the plea questionnaire, he had not known what jury instructions were or that they were part of the plea questionnaire. (Hearing Tr. at 37-38, Docket # 22-1 at 53-54.) Kahill testified that at the time he entered his plea, he did not understand that his after-the-fact actions were relevant to whether he was guilty of first-degree reckless injury. (Hearing Tr. at 38, Docket # 22-1 at 54.) He testified that if he had understood that, he would have tried to negotiate a different plea or gone to trial. (Hearing Tr. at 39, Docket # 22-1 at 55.)

         The circuit court found credible trial counsel's testimony that he had discussed the elements of the offense and the relevance of Kahill's actions after the injury with Kahill. (Hearing Tr. at 65-76, Docket # 22-1 at 81-92.) The judge noted that after-the-fact actions were not a “defense, ” but rather, part of the totality of factors the jury would consider when determining whether Kahill acted with utter disregard for human life. (Id.) He found Kahill's testimony that he would not have entered the guilty plea but for the alleged error to be not credible. (Id.) Thus, the circuit court denied the plea withdrawal request, and the Wisconsin Court of Appeals affirmed. (Docket # 13-1.) The Wisconsin Supreme ...


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