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Garcia v. Pollard

United States District Court, E.D. Wisconsin

August 19, 2019

CESAR O. GARCIA, Petitioner,


          William C. Griesbach, Chief Judge United States District Court.

         Cesar 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.


         A. Evidence at Trial

         On the 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.

         Luis 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.

         In the 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.

         A SWAT 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.

         In the 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 238:7-241:15.

         In the 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; 76:19-78:4.

         Garcia 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.

         On 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.

         Much of 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.

         B. Postconviction Proceedings and Appeals

         In July 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 trial. ...

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