United States District Court, E.D. Wisconsin
DECISION AND ORDER
JOSEPH UNITED STATES MAGISTRATE JUDGE
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
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.
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
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.)
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.
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.)
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.)
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).
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.)
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
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. §
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
[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
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).
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.
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
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.”).
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).
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 ...