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Long v. Percy

United States District Court, E.D. Wisconsin

September 5, 2019

PETER J. LONG, Petitioner,
DOUGLAS PERCY, Respondent.



         Peter J. Long seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket # 1.) Long was convicted of operating while intoxicated (OWI) 8th offense and sentenced to ten years, consisting of five years of initial confinement followed by five years of extended supervision. (Id.) Long alleges that his conviction and sentence are unconstitutional. For the reasons below, the petition for writ of habeas corpus will be denied and the case dismissed.


         The facts according to the court of appeals are as follows. Long was arrested for OWI after police stopped his vehicle on U.S. Highway 41. (State v. Long, Appeal No. 2014AP707-CR, ¶ 2 (Wis. Ct. App. Dec. 23, 2014), Docket # 11-5.) A resident in Long's apartment building in the town of Menasha had called the police when Long was pounding on a tenant's door demanding money. (Id.) The responding officer, Corey Colburn, tried to contact Long in his apartment, but he did not respond. (Id.) Colburn had dispatch call Long, and Colburn testified that he heard Long tell the dispatcher, in a loud voice, that he was in Milwaukee. (Id.) Colburn informed Long, through his apartment door, that he was going to cite him for disorderly conduct. (Id.) Colburn left. (Id.)

         About two hours later, at 1:22 a.m. on September 15, 2011, a different tenant called the police reporting that Long was driving to Milwaukee to kill his former cellmate. (Id. ¶ 3.) Colburn testified that the caller identified herself as a concerned friend. (Id.) The tenant told Colburn, on the telephone, that Long was possibly under the influence of alcohol or narcotics and that he was driving at speeds in excess of 120 miles per hour. (Id.) The tenant also told Colburn that Long planned to cut off the arm of his former cellmate and bring it back and cook it. (Id.) Colburn testified that the tenant was concerned for Long's safety and that of the other drivers on the road. (Id.) Colburn issued an attempt to locate (ATL) notice on Long and went to the tenant's apartment. (Id.) While he was there, Long called on the telephone. (Id.) The tenant put the call on speaker phone, and Colburn heard Long say that he was on the way to Milwaukee, traveling ninety miles per hour. (Id.) Long also said that he had had police contact earlier in the day and “he was going to go to jail so he wanted to have one last night of fun.” (Id.) During this conversation, Colburn noticed that Long's speech was very loud and sounded slurred and that Long “appeared not to make a whole lot of sense.” (Id.)

         Washington County Deputy Sheriff John Binsfeld heard the ATL over his squad radio. (Id. ¶ 4.) Binsfeld read the teletype, which indicated that the subject had been involved in a disturbance earlier that evening and that officers were unable to make face-to-face contact, but had obtained information via telephone that Long was en route from Menasha to the Milwaukee area “to kill someone.” (Id.) The ATL directed law enforcement to “stop, hold and advise, ” in other words, to stop the individual if in a vehicle, hold for the town of Menasha, and attempt to locate and advise the town police of the stop to make a determination of what to do with Long. (Id.) The ATL contained a “please use caution” warning. (Id.)

         Binsfeld set up on Highway 41 to try to find Long. (Id. ¶ 5.) He positioned himself at an exit between Menasha and Milwaukee and looked for Long's vehicle. (Id.) After he had identified Long's vehicle by its PWRHSE license plate, he called other squads to set up a “high risk traffic stop” because he was not sure if Long had weapons. (Id.) The stop was coordinated with two other deputies. (Id.) The deputies shut down traffic on the southbound side of Highway 41. (Id.) While following Long, Binsfeld saw him cross about a foot to a foot and a half over the fog line on the edge of the road for about fifty feet. (Id.) Binsfeld stopped Long's vehicle. (Id.) Binsfeld testified that in a high-risk situation like this, officers have the subject exit the vehicle instead of approaching, and have their weapons drawn. (Id.) When Binsfeld confronted Long, he noticed an odor of alcohol and observed that Long had glassy, bloodshot eyes. (Id.) Binsfeld administered field sobriety tests and ultimately arrested Long for OWI. (Id.)

         Long moved to dismiss the case or suppress the evidence. (Id. ¶ 6.) Long argued that the evidence pointing toward his guilt was seized on the basis of an illegal stop. (Id.) As grounds, Long asserted that the law enforcement officers had acted without reasonable suspicion to stop him. (Id.) After a hearing (Docket # 11-20), the circuit court denied Long's motion and Long pleaded guilty to OWI (Docket # 11-5 ¶ 6). Long appealed the denial of his motion to suppress, and the court of appeals affirmed. (State v. Long, Appeal No. 2014AP707-CR (Wis. Ct. App. Dec. 23, 2014), Docket # 11-5.) Long filed a motion for reconsideration that was denied, as was his petition for review in the Wisconsin Supreme Court. (Docket # 11-9, 11-12.)

         Long subsequently filed a motion for post-conviction relief under Wis.Stat. § 974.06 arguing ineffective assistance of trial counsel, ineffective assistance of post-conviction counsel, a Fourth Amendment challenge to the warrantless, nonconsensual blood draw, and an ex post facto challenge. (Docket # 11-13.) After a Machner hearing (Docket # 11-22), the motion was denied and the court of appeals affirmed the denial. (State v. Long, Appeal No. 2016AP1069 (Wis. Ct. App. Feb. 22, 2017), Docket # 11-16.) The Wisconsin Supreme Court denied Long's petition for review. (Docket # 11-18.)

         On habeas review, Long raises the issue raised on direct appeal, as well as the issues raised in his § 974.06 proceedings.


         Long'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 627.


         Long raises five grounds for relief in his habeas petition: (1) that the Wisconsin OWI penalty statute is an unconstitutional ex post facto punishment (Docket # 1 at 6-11); (2) that the statute violates due process and fundamental fairness under the Fourteenth Amendment (id. at 11-14); (3) that the warrantless, nonconsensual blood draw violated his due process rights and Missouri v. McNeely, 133 S.Ct. 1552 (2013) (id. at 14-17); (4) ineffective assistance of trial counsel (id. at 17-36); and ineffective assistance of postconviction/appellate counsel (id. at 36-37). I will address each argument in turn.

         1. Wis.Stat. § 346.65(2)

         1.1 Ex Post ...

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