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Turner v. Foster

United States District Court, E.D. Wisconsin

August 29, 2019

BRIAN FOSTER, Respondent.


          Nancy Joseph, United States Magistrate Judge.

         Delmarco Turner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Habeas Petition, Docket # 1.) Turner is currently serving a fifty-year sentence following his conviction for armed robbery with threat of force, felon in possession of a firearm, and theft of moveable property. (Id. at 2.) Turner argues that his conviction and sentence are unconstitutional. For the reasons stated below, Turner's petition will be denied and the case dismissed.


         As described by the court of appeals, Turner's convictions were based on an incident in which three men and one woman forced their way into a residence where they took cash, credit cards, jewelry, a gun, and other items from the residents at gunpoint. (State of Wisconsin v. Turner, Appeal No. 2011AP2865 (Wis. Ct. App. Mar. 28, 2013), Docket # 1-1 ¶ 2.) One of the robbers had three gold teeth and wore a brown jacket, and another wore a stocking mask over braided hair. (Id.) The credit card taken during the robbery was used a few hours later at a truck stop in Illinois. (Id.) The victims were able to identify several of the robbers, including Turner, who was wearing a brown jacket, from the truck stop's surveillance video. (Id.)

         Turner, who began serving a sentence in Missouri while the crime was still being investigated, filed a request for speedy disposition pursuant to the Interstate Agreement on Detainers (IAD) on October 29, 2009. (Id. ¶ 3.) At a trial held in March 2010, the jury acquitted Turner on two counts and failed to reach a verdict on the remaining counts, resulting in a mistrial on those counts. (Id.) At a second trial on June 23, 2010, a jury convicted Turner of two counts of armed robbery with threat of force, possession of a firearm by a felon, and theft of moveable property. (Judgment of Conviction, Docket # 16-1.)

         The Wisconsin Court of Appeals affirmed Turner's judgment of conviction in a written decision dated March 28, 2013. (Docket # 1-1.) Turner's petition for review with the Wisconsin Supreme Court was denied on August 1, 2013. (Docket # 16-6.) Turner later filed a motion for postconviction relief under Wis.Stat. § 974.06 (Docket # 16-7), and then amended the motion (Docket # 16-13). The circuit court denied the amended motion and the court of appeals affirmed. (Docket # 16-18.) Turner's petition for review with the Wisconsin Supreme Court was denied on June 15, 2016. (Docket # 16-20.)

         In his habeas petition in this court, Turner raised four grounds for relief: (1) violation of his right to self-representation; (2) violation of his right to present a defense; (3) ineffective assistance of trial counsel; and (4) ineffective assistance of appellate counsel. (Docket # 1 at 6-10.) I granted Respondent's motion to dismiss Ground Two and part of Ground Three as procedurally defaulted, but allowed Turner to proceed on Ground One (violation of the right to self-representation); claim one of Ground Three (ineffective assistance of trial counsel for failure to file a motion to dismiss charges based on a violation of the IAD); and Ground Four (ineffective assistance of appellate counsel). (Docket # 23.) Turner filed his brief in support of his petition on January 8, 2019 (Docket # 37) and the Respondent filed his brief on March 22, 2019 (Docket # 40). According to the scheduling order in this case, Turner had fifteen days to file a reply brief. (Docket # 30.) That deadline has now passed without a reply from Turner, so I proceed to resolve the claims.


         Turner's 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. § 2254(d)(2).

         A state 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 to” clause:

[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 different result.

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).

         To be 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. 1997). In 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


         1. Ground One: Right to Self-Representation

         Turner argues that the circuit court's refusal to allow him to represent himself violated his right to self-representation under Faretta v. California, 422 U.S. 806 (1975). (Habeas Petition, Docket # 1 at 7-8; Pet.'s Br., Docket # 37 at 21-44.) Faretta held that the right to self-representation is implied in the Sixth Amendment. 422 U.S. at 819. This implicit right to self-representation applies to defendants who are mentally competent, whose waiver of the right to counsel is knowingly and intelligently made, and whose request to proceed pro se is made clearly and unequivocally. See Freeman v. Pierce, 878 F.3d 580, 582 (7th Cir. 2017) (citing Faretta, 422 U.S. at 835).

         In this case, Turner's counsel withdrew after the first trial ended in a mistrial, and substitute counsel could not be found in time for the scheduled date of the second trial on April 19, 2010. (Docket # 29-3 at 3.) On April 6, 2010, with just two weeks remaining before the second trial, the court informed Turner that the trial could proceed on April 19th only if Turner represented himself; otherwise, the trial would be rescheduled and substitute counsel found. (Id. at 7-8.) Turner stated that he was not willing to waive his right to a trial within 180 days. (Id. at 8.) When the court asked Turner to clarify if ...

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