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Kropp v. Foster

United States District Court, E.D. Wisconsin

March 26, 2019

THOMAS B. KROPP, Petitioner,
v.
WARDEN BRIAN FOSTER, Respondent.

          ORDER

          J. P. STADTMUELLER, U.S. DISTRICT COURT

         1. INTRODUCTION

         In 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.

         2. BACKGROUND

         After 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:

         (1) failing to obtain, review, and impeach W.R. with medical records; and

         (2) failing to communicate the strength of the government's evidence and convey plea deals. Kropp, 2017 WL 5037002, at *3.

         The Wisconsin Court of Appeals rejected each asserted ground of ineffectiveness:

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.[1] 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 medical records.
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 offers.

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).

         Kropp's 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.[2]

         3. ...


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