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Powell v. Hermans

United States District Court, E.D. Wisconsin

March 19, 2019

JIMMY POWELL, Petitioner,
v.
TROY HERMANS,[1] Respondent.

          DECISION AND ORDER

          NANCY JOSEPH UNITED STATES MAGISTRATE JUDGE

         Jimmy Powell, a prisoner in Wisconsin custody, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Habeas Pet., Docket # 13.) Powell was convicted of first-degree reckless injury and sentenced to twenty-three years in prison, consisting of thirteen years of initial confinement followed by ten years of extended supervision. (Id. at 2.) Powell contends 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

         Powell's conviction arose from “a drug deal gone bad.” (Wisconsin v. Powell, 2013AP1111 (Wis. Ct. App. Mar. 27, 2014), Docket # 15-5 ¶ 1). As summarized by the court of appeals, the facts are as follows.

         On the afternoon of April 30, 2009, Robert Rabe and his friend Ryan Ryckman were together at Rabe's automobile repair shop. (Id. at ¶ 3.) Rabe had $900 in cash in his pocket.

         (Id.) Late in the evening, Rabe contacted his regular source of cocaine, Powell. (Id.) Rabe and Ryckman met Powell at a remote location with dim lighting. (Id.) Ryckman had never met Powell before, and Powell testified that he had never seen Ryckman before. (Id.)

         When Rabe and Ryckman arrived, Rabe parked his vehicle, got out, approached Powell's vehicle, and got in the passenger side to complete the drug transaction. (Id. at ¶ 4.) Ryckman stayed in Rabe's vehicle. (Id.) There was an altercation that eventually left Rabe outside, but very near, Powell's vehicle and Powell inside the vehicle. (Id.) Powell sped off with his headlights off, running over Rabe and causing serious injury. (Id.)

         Ryckman testified that, while he was waiting in Rabe's vehicle, he thought the “deal” was taking too long, so he exited and started walking toward Powell's vehicle. (Id. at ¶ 5.) Ryckman testified that as he walked toward Powell's vehicle, he saw Rabe getting run over. (Id.) Ryckman said he approached Rabe, who was seriously injured. (Id.) Ryckman took out his cell phone and called 911. Ryckman did not know where they were, but he attempted to give 911 location information so that help could be sent. (Id.)

         Meanwhile Powell returned to the scene, with his vehicle headlights still off. (Id. at ¶ 6.) Powell approached Ryckman and Rabe, who was lying on the ground. (Id.) Ryckman testified that Powell pushed him to the ground and struggled with him over the phone. (Id.) The phone was sheared in half, ending the 911 call. (Id.) Powell testified that he dropped the half of the phone that ended up in his hand, got back in his vehicle, and drove off. (Id.) Ryckman had the other half of the phone in his hand when police arrived. (Id.) Disputed expert testimony and a knife found at the scene supported the view that Powell cut Rabe's throat with a knife before or after Powell's struggle with Ryckman. (Id.) At the same time, the defense expert and one of the State's experts opined that Rabe's sliced throat could have been caused by Powell's vehicle. (Id.) Police were unable to locate Rabe's $900 in cash. (Id.)

         Powell was charged with attempted first-degree intentional homicide, armed robbery, and first-degree reckless injury. (Id. at ¶ 2.) The prosecution's theory was that Powell observed that Rabe had a large amount of cash and attempted to take it from Rabe, leading to an altercation after which Powell ran over Rabe as he sped away, returned to the scene and interfered with Ryckman's attempt to summon help, and attempted to kill Rabe, who was the only person likely to be able to identify Powell. (Id. at ¶ 7.) Powell's trial counsel admitted that Powell was at the scene and that Powell hit Rabe with Powell's vehicle, but argued that it was an accident. (Id. at ¶ 8.) The defense pointed to conflicts and ambiguities in the evidence. (Id.) Powell's counsel further argued that it made no sense that Powell would attempt to rob and kill a long-term source of money. (Id.) After a four-day trial, (Docket # 15-18, # 15-21), the jury found Powell not guilty of attempted first-degree intentional homicide or armed robbery, but found him guilty of first-degree reckless injury (Docket # 15-1).

         On appeal, Powell challenged the trial court's admission of evidence regarding Powell's history of drug dealing, the trial court's omission of a jury instruction relevant to Powell's defense, and a supplemental instruction to the jury that Powell argued misstated the law and created a mandatory presumption. (Docket # 15-2.) Powell also argued ineffective assistance of counsel and insufficiency of the evidence, as well as for return of bail money to the posters. (Id.) On March 27, 2014, the court of appeals rejected his arguments and affirmed. (Docket # 15-5.) The Wisconsin Supreme Court denied Powell's petition for review. (Docket # 15-8.) Powell also filed a motion for postconviction relief arguing ineffective assistance of trial counsel and postconviction counsel, the denial of which was upheld by the court of appeals on October 25, 2015. (Docket # 15-12.) The Wisconsin Supreme Court denied review on February 13, 2017. (Docket # 15-15.)

         Powell filed a petition for a writ of habeas corpus in this court on May 27, 2015. (Docket # 1.) On July 8, 2015, I issued an order staying the case pending exhaustion at the state level. (Docket # 9.) On June 30, 2017 I issued an order reopening the case and directing Powell to file a new petition. (Docket # 12.) Powell filed his amended petition on July 12, 2017, and it is now the operative petition in this case. (Docket # 13.) The matter is now fully briefed and ready for resolution.

         STANDARD OF REVIEW

         Powell'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

         Habeas relief is available only for state court decisions that are contrary to federal law. This court may not review whether a state court properly applied its own state laws. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”).

         “The operative decision under review is that of the last state court to address a given claim on the merits.” Harris v. Thompson, 698 F.3d 609, 623 (7th Cir. 2012) (citing Greene v. Fisher, 565 U.S. 34 (2011). In this case, there are two operative decisions: (1) the court of appeals decision of March 27, 2014 adjudicating Powell's claims of trial court error and ineffective assistance of counsel (Docket # 15-5), and (2) the court of appeals decision of October 25, 2016 on Powell's claims of ineffective assistance of trial and postconviction counsel (Docket # 15-12).

         ANALYSIS

         Powell's amended petition argues that he is entitled to a writ of habeas corpus due to (1) ineffective assistance of trial counsel for failing to object to a supplemental jury instruction, (2) insufficiency of the evidence that Powell showed utter disregard for human life as necessary to convict him of first-degree reckless injury, (3) trial court error in allowing evidence of a ten-year drug dealing ...


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