United States District Court, E.D. Wisconsin
THOMAS B. KROPP, Petitioner,
WARDEN BRIAN FOSTER, Respondent.
STADTMUELLER, U.S. DISTRICT COURT
March 2012, Thomas Kropp (“Kropp”) was charged
with aggravated battery, in violation of Wis.Stat. §
940.19(5), in Milwaukee County Circuit Court Case No.
2012CF1246. The charge arose from a physical altercation
between Kropp and his friend, W.R., who suffered severe
injuries at Kropp's hands. The jury found Kropp guilty of
the charge and he was sentenced to ten years'
imprisonment to be followed by five years of extended
supervision. Kropp filed a motion for post-conviction relief
on May 29, 2014, raising allegations of ineffective
assistance of trial counsel. After some procedural pitfalls,
the trial court eventually held a post-conviction hearing and
denied Kropp's motion for post-conviction relief on April
28, 2016. The Wisconsin Court of Appeals affirmed the denial
on October 31, 2017, and the Wisconsin Supreme Court denied
Kropp's petition for discretionary review on March 13,
2018. State v. Kropp, 2017 WL 5037002 (Wis. Ct. App.
Oct. 31, 2017); State v. Kropp, 380 Wis.2d 351 (Wis.
2018). On April 27, 2018, Kropp filed the instant petition
for a writ of habeas corpus pursuant to 28 U.S.C § 2254.
(Docket #1). In accordance with the Court's briefing
schedule, Kropp filed a brief in support of his petition on
July 30, 2018. (Docket #13). Respondent submitted his brief
in opposition on October 31, 2018. (Docket #16). Kropp filed
a reply on November 7, 2018. (Docket #17). For the reasons
explained below, Kropp's petition will be denied.
his guilty verdict, Kropp employed new counsel to represent
him at his Machner hearing, where the trial court
developed the factual record as to his ineffective assistance
of counsel claims and concluded that Kropp's trial
counsel was constitutionally adequate. See State v.
Machner, 92 Wis.2d 797 (Wis. 1979); (Docket #9-15).
Kropp then appealed his case to the Wisconsin Court of
Appeals, where he claimed that his trial counsel provided
ineffective assistance to him on the following grounds:
failing to obtain, review, and impeach W.R. with medical
failing to communicate the strength of the government's
evidence and convey plea deals. Kropp, 2017 WL
5037002, at *3.
Wisconsin Court of Appeals rejected each asserted ground of
Counsel testified at the Machner hearing that upon
learning the medical records were available, she believed her
officemate picked up the records for her. Counsel stated that
she reviewed the records prior to trial, but did not think
W.R.'s actual injuries were relevant to the
defense. She testified that W.R.'s injuries
were undisputed and the focus of the defense was on how W.R.
obtained those injuries. Moreover, on the first day of trial,
counsel told the court that she and Kropp had discussed the
timing of the State's disclosure of the medical records
and that Kropp waived his right to require authentication of
the records. Any claim by Kropp that counsel was ill-prepared
with regard to the medical records is purely speculative and
contrary to counsel's Machner testimony, which
the postconviction court found credible. We are bound by the
court's credibility findings. See State v. Peppertree
Resort Villas, Inc., 2002 WI.App. 207, ¶19, 257
Wis.2d 421, 651 N.W.2d 345 (The trial court “is the
ultimate arbiter of the credibility of the witnesses and the
weight to be given to each witness's testimony.”).
As to Kropp's allegation that counsel failed to impeach
W.R. with the medical records, we conclude that Kropp has not
shown either that counsel performed deficiently or that the
alleged deficiency prejudiced his defense. Kropp's
argument is based on a very limited portion of the medical
records. . .Kropp ignores the other portions of the medical
record that clearly indicate that W.R. was treated for an
“assault by an individual that [W.R.] knows” and
that W.R. suffered from an “orbital fracture.”
Even if counsel had attempted to impeach W.R. with the
medical records, the records themselves still would have
supported the jury's verdict. Accordingly, Kropp cannot
show that a different result was probable had counsel tried
to impeach W.R. We therefore conclude that counsel did not
render ineffective assistance in any regard as to W.R.'s
The postconviction court did not find Kropp's testimony
[regarding counsel's allegedly poor communication]
credible, but rather believed counsel's testimony that
she reviewed the medical records prior to trial and that she
discussed the records with Kropp “at length”
prior to trial. According to counsel, Kropp refused to plead
to anything other than a misdemeanor offense. The
postconviction court also found credible counsel's
testimony that she met with Kropp multiple times prior to
trial, provided him with certain discovery, and reviewed the
medical records and her trial strategy with Kropp. Again, we
are bound by the postconviction court's credibility
determinations. See Peppertree Resort Villas,
Inc., 257 Wis.2d 421, ¶19. Accordingly, we conclude
that counsel was not ineffective with regard to the plea
Kropp, 2017 WL 5037002, at *3-4. Kropp asserted the
same grounds in his petition for review to the Wisconsin
Supreme Court. (Docket #9-3).
habeas petition initially presented three grounds for relief.
(Docket #1 at 7-20). At the screening stage, the Court
concluded that Kropp's third ground for relief, a due
process challenge in light of trial counsel's
Machner hearing testimony, was better analyzed as
part of the ineffective assistance of counsel claims. (Docket
#6). The Court therefore ordered briefing on the remaining
two grounds. Id. Those grounds are: 1) ineffective
assistance of trial counsel based on trial counsel's
failure to obtain, review, and impeach W.R. with medical
records; and 2) ineffective assistance of trial counsel based
on trial counsel's failure to communicate to Kropp the
strength of government's evidence against him and the
government's various plea deals.