United States District Court, E.D. Wisconsin
CESAR O. GARCIA, Petitioner,
WILLIAM J. POLLARD, Respondent.
DECISION AND ORDER DENYING PETITION FOR RELIEF UNDER
28 U.S.C. § 2254
William C. Griesbach, Chief Judge United States District
Garcia was found guilty by a Kenosha County jury of three
counts of attempted first degree intentional homicide, three
counts of first degree reckless endangerment, and one count
of aggravated battery by use of a dangerous weapon, all
arising out of a drive-by shooting outside a Kenosha home
that left one man seriously injured. He was sentenced to 40
years initial confinement and 20 years of extended
supervision for the attempted first-degree intentional
homicide counts and received concurrent sentences on the
reckless endangerment convictions. After several state court
appeals, Garcia filed a pro se petition for federal
relief under 28 U.S.C. § 2254. He later retained counsel
who filed an amended petition on his behalf. For the reasons
that follow, Garcia's amended petition will be denied and
the case dismissed.
Evidence at Trial
evening of April 16, 2008, Luis Perez-Huitron drove his
live-in girlfriend Hilda Garcia-Rojas to her third shift job
at Monarch Plastics in Kenosha, Wisconsin. Several months
before moving in with Luis, Hilda had been Garcia's
girlfriend, and he was apparently unhappy that she had broken
off the relationship with him. According to Hilda, Garcia
once told her that if she left him, he would kill both her
and her new boyfriend. Dkt. No. 11-16 at 28:2-4. Hilda
testified after she began seeing Luis, Garcia began following
her from work to their house. Id. at 27:14-15. He
would park his beige Mazda on the street in front of a tavern
near the house she shared with Luis. Id. at 24:6-21.
After he dropped Hilda off at approximately 10:00 p.m. on
April 16, 2008, Luis noticed Garcia's car parked outside
the work site. Dkt. 11-15 at 58:22-59:7; 61:14-17. As he
proceeded back to his house, Luis noticed the car following
him. He immediately called his brother Arturo on his phone,
told him that Garcia was following him, and asked Arturo to
meet him at his house. Id. at 62:7-63:9.
and Arturo arrived at the home at approximately the same
time. They exited their cars and stood next to Luis' car.
Luis' brother-in-law Carlos Bautista-Ibenez arrived
shortly thereafter. Id. at 65:23-66:24. Garcia
stopped his vehicle a short distance down the street and
gestured toward Luis with his phone. Luis' phone rang,
and he answered it, thinking it was Garcia. The two yelled
obscenities at each other. Id. at 71:18-73:24.
Garcia then hung up, and began slowly driving toward Luis. As
Garcia drove by, he pulled out a gun and began shooting at
the three men. Although neither Luis nor his brother Arturo
was hit, Carlos was struck in the upper chest. Id.
at 82:1-83:14. Luis and Arturo rushed him to the hospital,
and due to prompt medical care, Carlos survived. At trial,
both Luis and Carlos identified Garcia as the shooter.
meantime, Kenosha police proceeded to the scene where they
took photographs, documented their observations, and
interviewed neighbors. Id. at 138-144. Police soon
learned that Garcia lived in Racine with his mother, the
actual owner of the car he was driving. Racine police drove
by the home but reported that the beige Mazda was not there.
Shortly after midnight, however, word was received that the
beige Mazda was parked in the driveway at the home. Kenosha
and Racine police proceeded to that location and found
Garcia's phone in the car. The call history of the phone
retrieved from Garcia's car showed that a call had been
placed to Luis' phone on April 16, 2008, at approximately
10:24 p.m. Dkt. No. 11-16 at 206:22-209:20.
team was formed and the occupants of the house were ordered
outside. Garcia's mother initially told police that he
was not at home, but then admitted he was inside hiding in
the attic. She later gave a statement at the police station
admitting that Garcia had instructed her to say he was not
home when police first ordered him to come out of the house
over the loud speaker. Although she recanted her statement in
her testimony at trial, the officer who took her statement
testified that she told him he came into her bedroom when he
arrived home shortly before midnight, appeared anxious and
upset, and told her he had done something bad. Id.
at 225:12-230:24; 265:11-277:18. In any event, when Garcia
failed to comply with police commands over a loud speaker
that he exit the home, police entered, pulled him out of the
attic, and took him into custody.
search of the home that followed, police found a .22 caliber
revolver hidden under the back porch, which was later
determined to be the gun that fired the bullet recovered from
Carlos' chest and one recovered from the trunk of
Luis' car. A State firearms examiner also determined that
the markings on a collection of .22 spent cartridges found in
the basement of the home were made by the same gun. Dkt. No.
11-17 at 224:10-232:4. Fifty-one bullets that had been fired
into a board recovered from the basement were also examined.
Although too damaged to determine whether they were fired
from the gun recovered from under the porch, the firearms
examiner did opine that they were Remington gold .22 caliber
bullets, just like the bullets recovered from Carlos'
chest and the trunk of Luis' car. Id. at
face of this evidence, Garcia tried to convince the jury that
he was framed. He testified that he had bought and sold guns
as a way of making money since he was sixteen years old, and
that one of his best customers was Carlos Bautista-Ibenez,
the very person he was alleged to have shot. Dkt. No. 11-18
at 175:23-177:12. In fact, Garcia testified that he had sold
Carlos the gun that the State claimed he had used to shoot
Carlos about two weeks before he was arrested. Before he sold
it to Carlos, Garcia testified that he had shown Carlos it
was in good working order by test firing it into the boards
found in his basement. Id. at 179:18-180:23. In
closing, Garcia's attorney argued that Luis and Carlos
were lying about who shot Carlos. Counsel argued that Carlos
was somehow shot with his own gun, and that he called his
brother on the way to the hospital and instructed him to
plant the gun at Garcia's house so that he would not be
caught with a stolen gun. Dkt. No. 11-20 at 68:23-75:20.
Counsel also argued that the evidence showing Garcia had
called Luis on his phone shortly before the shooting was
manufactured by the police and that Hilda was lying about the
threat Garcia had made. Id. at 64:16-66:9;
also offered evidence intended to refute the inference that
his refusal to exit the house when police ordered him to come
outside was due to his involvement in the shooting. In an
apparent attempt to provide an alternative explanation for
his attempt to hide in the attic, Garcia testified that he
thought there was an outstanding warrant for his arrest.
Garcia testified on direct that he was arrested in Racine in
March of 2008 while in possession of another .22 caliber
handgun that police then confiscated. He missed his court
appearance for that charge on April 1, 2008, and assumed a
warrant had been issued for his arrest. Garcia also claimed
he did not exit the house when police ordered him to do so
because his uncle, who thought the police might be there to
arrest him, had asked him to flush his drugs down the toilet.
Dkt. No. 11-18 at 182:8-183:5; 190:11-194:3.
cross examination, the prosecutor inquired further into
Garcia's March arrest for carrying a concealed weapon in
Racine. He elicited the fact that Garcia was arrested in a
borrowed car parked outside another young woman's house
who had apparently called the police. When police approached,
they found the loaded gun on the seat next to him, and he had
a ski mask and rubber gloves on his person. A set of two-way
radios, which the prosecutor suggested could be used to
monitor police transmissions, and a pair of binoculars was
also found in the car. Garcia admitted he falsely told police
he had found the gun. Id. at 240:19-264:10.
the defense rested on expert reconstruction testimony
intended to show that the State's account did not match
the physical evidence. Based on the assumed positions of the
vehicles on the night of the shooting, the defense attempted
to show that the shooting could not have occurred in the
manner claimed. But because the precise locations of the
shooter, the victim, and the vehicles was unknown, this
evidence was easily called into question. Dkt. No. 11-19 at
107:11-127:9. After approximately six hours of deliberations,
the jury found Garcia guilty on all seven counts.
Postconviction Proceedings and Appeals
2012, Garcia, represented by postconviction counsel, filed a
motion in circuit court for a new trial on the ground that
his trial counsel was ineffective for failing to recognize
that the reckless endangerment charges were lesser-included
offenses of the attempted homicide charges. The court
conducted a hearing on the motion and subsequently denied the
motion on January 8, 2013. The court reasoned that the jury
was instructed to consider the greater-included offenses
first and that the evidence of guilt was overwhelming, and
therefore Garcia was not prejudiced. Garcia subsequently
filed an appeal. On July 24, 2013, the Wisconsin Court of
Appeals dismissed the appeal to allow Garcia to pursue issues
not adequately raised in the circuit court. Garcia filed a
second motion for a new trial. The State then moved to
dismiss the three counts of first-degree reckless
endangerment, and the circuit court granted the State's
motion to dismiss and denied Garcia's motion for a new