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Walker v. Pollard

United States District Court, E.D. Wisconsin

September 4, 2019

MONTGOMERY WALKER, Petitioner,
v.
WILLIAM POLLARD, Warden, Respondent.

          DECISION AND ORDER

          LYNN ADELMAN UNITED STATES DISTRICT JUDGE

         Before me now are two matters: the merits of Montgomery Walker's petition for a writ of habeas corpus under 28 U.S.C. § 2254, and the respondent's motion for reconsideration of my earlier denial of his motion to dismiss.

         I. BACKGROUND

         In March 2012, following a jury trial, Walker was convicted in a Wisconsin court of first-degree sexual assault of a child under age twelve. In its opinion affirming Walker's conviction, the Wisconsin Court of Appeals described the facts of the case as follows:

According to the criminal complaint, Walker's eight-year-old granddaughter was in her bedroom watching a movie and coloring when Walker came into her room, took her by the hand, and led her into the laundry room. Walker then took off her pants and underwear and carried her into the bathroom where he placed her on the sink and told her to open her legs. The granddaughter told police that Walker then “put his privacy” (identified as his penis) “into her privacy” (identified as her vagina). Walker later returned to her room and motioned to her to follow him. He took her by the arm, led her to the bathroom where he removed her pants and underwear, and again “put his privacy into her privacy.” A DNA report concluded semen found on two spots on the victim's underwear matched Walker's DNA. Walker claimed innocence and indicated to the circuit court that he intended to present an alibi defense. Walker stated he wanted a lawyer to take his case to trial. Walker subsequently asked the court to allow his trial counsel to withdraw as he did not think counsel supported him in presenting his innocence claim. The court rejected his argument.
At trial, Walker presented a defense in which he denied sexually assaulting the victim and he presented an explanation regarding how his semen came to be on the victim's underwear. Walker's wife testified that she heard Walker tell the victim to go to bed and she heard the victim stomp down the hallway and slam the door. Walker's wife further testified Walker got into bed with her and she was aware that he was sleeping next to her until 6 a.m. She claimed to be aware of where Walker was during the entire time and that he had no contact with the victim.
Walker's wife also testified that she and Walker had sex the day before the assault. She wiped semen off herself with a sanitary pad and threw it in the wastebasket in the bathroom. She testified her granddaughter had the habit of playing in the bathroom garbage. Walker similarly testified that he had sex with his wife the day prior to the assault and believed the victim's mother set him up. Walker believed the victim or her mother wiped his semen from his wife's sanitary pad onto the victim's underwear.

State v. Walker, No. 2013 AP 2193-CR, 2014 WL 4192791, at *1 (Wis. Ct. App. Aug. 26, 2014).

         The jury convicted Walker, and the trial court sentenced him to twenty-five years' initial confinement and seven years' extended supervision. At this point, the public defender appointed Attorney Urszula Tempska to represent Walker on appeal.

         In Wisconsin, to raise certain issues on appeal, including claims of ineffective assistance of trial counsel, a defendant must first file a motion for postconviction relief in the trial court. See, e.g. State ex rel. Rothering v. McCaughtry, 205 Wis.2d 675, 677-78 (Ct. App. 1996). If the motion alleges facts that, if true, would entitle the defendant to relief on a claim of ineffective assistance of trial counsel, then the trial court must hold an evidentiary hearing, known as a Machner hearing. See, e.g., State v. Allen, 274 Wis.2d 568, 576-77 (Ct. App. 2004); State v. Machner, 92 Wis.2d 797, 804 (Ct. App.1979).

         A defendant's appellate counsel is usually the attorney who files the postconviction motion, and Wisconsin cases will often describe the same attorney as “postconviction counsel” and “appellate counsel.” When counsel prosecutes a postconviction motion in the trial court, she acts as postconviction counsel. When she files briefs and argues the case on appeal, she acts as appellate counsel.

         Attorney Tempska initiated Walker's direct appeal by filing a motion in the trial court seeking postconviction relief. The motion raised two issues: (1) Did the trial court violate Walker's right to be represented by counsel with whom he could communicate effectively when it denied trial counsel's motion to withdraw; and (2) did trial counsel render ineffective assistance during plea negotiations, which resulted in Walker's rejecting a favorable plea deal?

         Regarding the first issue, the postconviction motion alleged that the relationship between Walker and his trial counsel, Alvin Richman, deteriorated during the representation, until both men felt that they were irreconcilably conflicted and unable to communicate. Prior to trial, Richman filed a motion to withdraw, citing irreconcilable differences with Walker as the reason. The trial court held a hearing on this motion and found that, despite their differences, Walker and Richman could communicate effectively. Thus, the trial court denied the motion to withdraw. In the postconviction motion, Walker alleged that, in denying the motion, the trial court applied the wrong legal standard, made clearly erroneous factual findings, and rendered a decision that could not have been reached by a rational judge applying the correct legal standard.

         Regarding the second issue, the postconviction motion alleged that trial counsel did not explain, or ensure that Walker understood, the elements of the offense during or prior to plea negotiations. The motion alleged that, during the times when the prosecutor's plea offer was on the table, Walker misunderstood the statute's definition of “sexual intercourse” and how the physical evidence supported the state's case. The statute defined “sexual intercourse” as any intrusion, however slight, of any part of a person's body into the genital opening of another, and it specified that the emission of semen is not required. See Wis. Stat. § 948.01(6). According to the motion, Walker believed that, to prove him guilty, the state was required to show that he fully inserted his penis into the victim's vagina, repeatedly thrusted his penis inside her vagina, and ejaculated semen inside her vagina. Walker claimed that he believed the state's physical evidence did not show that he did these things. He alleged that although the state's evidence showed some damage inside the victim's vagina and semen on the victim's underwear, he believed the state had to show that the victim sustained greater damage to her vagina than was found and that semen was present inside her vagina. Walker alleged that, had trial counsel explained the definition of “sexual intercourse” to him and illustrated how the state's physical evidence matched the definition, he would have accepted the prosecutor's offer to reduce the charge to second-degree sexual assault of a child in exchange for his pleading guilty.

         The trial court denied Walker's postconviction motion without a hearing. As to the first issue, the court concluded that counsel's motion to withdraw was properly denied. On the second issue, the court concluded that Walker had not shown that his alleged misunderstanding of the definition of “sexual assault” caused him to reject the plea offer. The court noted that Walker's defense at trial was that he had had no sexual contact with the victim at all rather than that his sexual contact with the victim did not rise to the level of sexual intercourse. The court stated that Walker's claim that he would have pleaded guilty if only he knew the correct definition of sexual intercourse “fl[ew] in the face of” his defense at trial. ECF No. 33-2 at p. 76 of 103. The court also observed that the trial judge explained the meaning of “sexual intercourse” on the first day of trial, while Walker was in court, and yet Walker did not at that time indicate that he wanted to accept the state's plea offer. For these reasons, the court concluded that even if trial counsel performed deficiently in failing to advise Walker of the definition, Walker did not show prejudice, in that he did not show that, but for the deficient advice, he would have pleaded guilty.

         Walker, still represented by Tempska, appealed to the Wisconsin Court of Appeals and raised the same two issues that he had raised in his postconviction motion. The Wisconsin Court of Appeals rejected both claims. Regarding trial counsel's motion to withdraw, the court found that the record supported the trial court's finding that Walker and Richman could communicate effectively. Regarding trial counsel's failure to properly advise Walker of the definition of “sexual intercourse, ” the court found that “the record conclusively demonstrates Walker would have proceeded to trial and continued to claim his innocence whether or not counsel informed him that sexual intercourse did not require penetration or the emission of semen.” State v. Walker, 2014 WL 4192791, at *2. Like the trial court, the court of appeals observed that Walker's defense at trial was that he had had no sexual contact with the victim at all. The court implied that therefore Walker's alleged misunderstanding of the definition of “sexual intercourse” could not have affected his decision to proceed to trial. Also like the trial court, the court of appeals found that the definition of “sexual intercourse” was read in open court and in Walker's presence shortly after Walker had last rejected the state's plea offer. The court reasoned that if the alleged misunderstanding of the definition of “sexual intercourse” affected Walker's decision to reject the plea offer, he could have attempted to resurrect the plea offer after he heard the definition. Because he did not do so, the court reasoned, counsel's alleged failure to explain the definition to him could not have affected his decision to continue with the trial. The court concluded that, for these reasons, Walker had not suffered prejudice from trial counsel's alleged deficient performance.

         Walker sought discretionary review by the Wisconsin Supreme Court. That court denied review on December 18, 2014.

         On November 3, 2015, Walker filed a federal habeas petition in this court. See E.D. Wis. Case No. 15-C-1306. He asked the judge to whom that case was assigned to employ the stay-and-abeyance procedure of Rhines v. Weber, 544 U.S. 269 (2005), so that he could exhaust his state-court remedies with respect to certain grounds for relief. The judge denied Walker's request. Following the denial, Walker sought dismissal of his petition without prejudice so that he could exhaust his unexhausted claims. The court granted that request and dismissed the petition without prejudice on May 24, 2016.

         On February 2, 2016, while his first federal petition was pending, Walker filed a state postconviction motion under Wis.Stat. § 974.06 in the Milwaukee County Circuit Court.[1] In this motion, Walker alleged that his trial counsel rendered ineffective assistance by failing to object to a juror that Walker thought was biased against him. According to Walker, the juror (Juror 12) was a former upstairs neighbor of Walker's mother who once got into a verbal altercation with Walker. The altercation occurred when Walker confronted the juror about blocking his mother's driveway. Walker alleged that the altercation ended when the juror told Walker that he was “going to blow [Walker's] damn head off.” Aff. of Montgomery Walker ¶ 6, ECF No. 10.

         During voir dire, Walker did not recognize the juror because he had grown a full beard since the last time Walker had seen him. When the court asked the prospective jurors whether any of them knew Walker, the juror in question did not raise his hand. Thus, the juror was seated without objection. However, on the second day of trial, Walker's sister recognized the juror and informed Walker and his trial counsel that he was a long-time family “foe” who had in the past threatened to kill Walker. Id. ¶ 8. According to Walker, his trial counsel shrugged off this information, saying that it was too late to stop the trial, and counsel did not bring Walker's claim of juror bias to the court's attention. The juror eventually became the foreperson of the jury. Walker alleged in his postconviction motion that trial counsel's failure to bring the information about the juror's potential bias to the court's attention amounted to ineffective assistance.

         Also in his § 974.06 motion, Walker alleged that his postconviction/appellate counsel rendered ineffective assistance by failing to raise, in her postconviction motion and on appeal, trial counsel's ineffectiveness in failing to bring Walker's claim about the juror to the trial court's attention. In the motion, Walker alleged that he told appellate counsel about trial counsel's failure to act on the information about the juror but that she ignored this issue.

         At the time Walker filed his § 974.06 motion, he also filed his own affidavit attesting to the above facts and an affidavit from his mother in which she states, among other things, that the juror lived above her for approximately two years. Walker also filed a motion to subpoena the witnesses that he intended to call at an evidentiary hearing, including Attorneys Richman and Tempska. See ECF No. 17-9 at pp. 31-46 of 46.

         The trial court denied Walker's § 974.06 motion without holding an evidentiary hearing, concluding that Walker had failed to allege facts that, if true, would warrant relief. Walker then appealed to the Wisconsin Court of Appeals, which affirmed. In its opinion, the court first invoked a state procedural rule stating that, absent a “sufficient reason, ” a person convicted of a crime may not raise a claim under § 974.06 that could have been raised in a prior postconviction motion or on direct appeal. See State v. Escalona-Naranjo, 185 Wis.2d 168, 185 (1994). Although the court did not expressly state this, it is apparent from the context of the opinion that the court would deem Walker's claim of ineffective assistance of trial counsel barred by Escalona-Naranjo unless Walker could demonstrate a sufficient reason for failing to raise that claim during direct review. The court then noted that ineffective assistance of postconviction/appellate counsel may constitute a sufficient reason under Escalona-Naranjo.

         At this point, the court of appeals examined whether Walker had sufficiently pleaded a claim of ineffective assistance of postconviction/appellate counsel. The court observed that when a movant alleges that postconviction or appellate counsel was ineffective in failing to raise an issue, Wisconsin law requires the movant to allege that the unraised issue was “clearly stronger” than the raised issue. See State v. Romero- Georgana, 360 Wis.2d 522, 545-46 (2014) (adopting “clearly stronger” standard for claims of ineffective assistance of postconviction counsel); State v. Starks, 349 Wis.2d 274, 308 (2013) (adopting “clearly stronger” standard for claims of ineffective assistance of appellate counsel). The court then recognized that Walker alleged that the juror-bias issue was “clearly stronger” than the issues Tempska raised in the postconviction motion, but it faulted him for failing to “offer any support for his assertion” that the juror-bias issue was clearly stronger than the issues postconviction originally raised. State v. Walker, No. 2016 AP 957, 2017 WL 3484968, at *3 (Ct. App. Aug. 15, 2017). The court also observed that Walker “failed to allege that appellate counsel's failure to raise [the juror-bias issue] cannot be explained or justified.” Id. The court then wrote that “[o]n this basis alone, Walker is prohibited from advancing” his claim of ineffective assistance of postconviction/appellate counsel. Id.

         The court of appeals then addressed “the merits of Walker's assertions.” Id. Walker had alleged in his § 974.06 motion and supporting affidavits that the juror lived upstairs from his mother for two years, that he and the juror had had an altercation over a parking space in which the juror threatened to blow Walker's head off, that the juror had knowingly deceived the court during voir dire as to his knowledge of Walker, that Walker did not recognize the juror during voir dire because the juror had grown a full beard since he had last seen him, that on the second day of trial Walker's family recognized the juror and brought the juror's prior history with Walker to trial counsel's attention, that trial counsel told Walker and his family that it was too late to stop the trial, that the juror eventually served as the foreperson of the jury, and that Walker told his postconviction/appellate counsel about all of the above but she ignored him. The court of appeals found that these allegations were insufficient to warrant an evidentiary hearing on whether trial counsel was ineffective in failing to inform the trial court of the juror's potential bias or on whether postconviction/appellate counsel was ineffective in failing to raise trial counsel's ineffectiveness as an issue in the postconviction motion.

         The court reasoned as follows:

Walker and his mother both submitted affidavits explaining their connection to Juror 12: that Walker's mother lived in the same duplex as Juror 12 for approximately two years, in particular noting the altercation that occurred between Walker and Juror 12, including the alleged threat against Walker by Juror 12. However, Walker admits that neither Walker nor any member of his family immediately identified Juror 12 upon seeing him in court.
Additionally, Walker provides very few details relating to the altercation and threat. Walker repeatedly refers to Juror 12 as a “foe” based on an alleged single incident that occurred at some date in the past. However, the circuit court, in its decision, found that:
The defendant does not allege when or how long his mother and Juror 12 were neighbors, how many total times he interacted with Juror 12, when (or how long ago) the dispute over the parking space took place or how long the dispute lasted. He also does not describe what happened with any particularity. The affidavit leaves open questions of whether the defendant and Juror 12 would have recognized each other at the time of the incident, whether they were in (or outside of) their vehicles at the time of the alleged dispute, or whether they had made eye contact. It is unclear from the facts alleged how (or if) the defendant identified Juror 12 at the time of the incident or whether Juror 12 had any reason to be able to identify the defendant.
The circuit court further found that Walker failed to allege sufficient material facts for the circuit court to assess whether Juror 12 knowingly deceived the court by failing to inform the circuit court that he knew Walker.
The defendant himself admits that he did not recognize Juror 12 by name or appearance until the second day of trial, and then only recognized him . . . after being reminded of him by his family. He also alleged that Juror 12's appearance had changed in the unspecified amount of time that had passed since the parking spot dispute. Under these circumstances the defendant's assertion that Juror 12 knowingly lied to the court in order to hide his alleged bias is merely a conclusory allegation that is unsupported by the facts alleged.
As a result, the circuit court denied Walker's motion without a hearing, finding that his motion and supporting affidavits failed to “allege sufficient material facts for the court to meaningfully assess whether there is any reasonable probability that Juror 12 would have even remembered this incident, let alone held a bias against the defendant or his family.” Additionally, the circuit court found that Walker failed to “provide sufficient material facts”-for example, who, what, where, when, why, and how- “that, if true, would entitle him to relief.” Accordingly, the circuit court, in finding that he was not denied an impartial jury or the effective assistance of trial or appellate counsel, properly denied Walker's claim of juror bias.

Id. at *4-5.

         Next, the court of appeals faulted Walker for failing to discuss “the substance of appellate counsel's original postconviction motion.” Id. at *5. This appears to be a reiteration of the court's earlier observation that Walker had failed to offer support for his assertion that the juror-bias issue was clearly stronger than the issues Tempska actually raised. In its next sentence, the court of appeals stated that because there was “overwhelming evidence against Walker, ” Walker could not have been prejudiced by trial counsel's error in not advising the trial court that Juror 12 may have been biased. Id. at *5. The court thus agreed that Walker “did not adequately plead” his ineffective-assistance claims and affirmed the trial court's decision to deny the § 974.06 motion without an evidentiary hearing. Id. at *5-6.

         Walker again petitioned for discretionary review by the Wisconsin Supreme Court, and that court again denied review. His petition for review was denied on December 12, 2017.

         On January 29, 2018, this court received Walker's current federal petition through the court's electronic-filing system. The petition includes Walker's declaration that he placed it in the “prison mailing system” on the same date that the court received it. ECF No. 1 at p.15. The petition alleges three grounds for relief-technically four, since ground three contains two claims. In ground one, Walker alleges that the trial court erred when it denied his trial counsel's pretrial motion to withdraw. In ground two, Walker alleges that his trial counsel rendered ineffective assistance during plea negotiations by failing to adequately advise him of the definition of “sexual intercourse” and the strength of the state's case against him. In ground three, Walker alleges that his trial counsel rendered ineffective assistance when he failed to bring the issues regarding Juror 12 to the court's attention. He also alleges that his appellate counsel rendered ineffective assistance by failing to raise a claim of ineffective assistance of trial counsel based on trial counsel's failure to object to Juror 12.

         During earlier proceedings in this case, the respondent moved to dismiss the petition on the ground that it was filed outside the one-year limitation period of 28 U.S.C. § 2244(d). In the alternative, the respondent argued that ground three of the petition- which alleges that Attorneys Richman and Tempska rendered ineffective assistance in failing to raise the juror issue-must be dismissed as procedurally defaulted. I denied this motion in order dated January 8, 2019. Since that time, the respondent has filed a motion for ...


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