United States District Court, E.D. Wisconsin
PETER J. LONG, Petitioner,
DOUGLAS PERCY, Respondent.
DECISION AND ORDER DENYING PETITION FOR WRIT OF
JOSEPH UNITED STATES MAGISTRATE JUDGE.
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.
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.)
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.”
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.)
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.)
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.)
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.)
habeas review, Long raises the issue raised on direct appeal,
as well as the issues raised in his § 974.06
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. §
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
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).
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
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.
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.
Wis.Stat. § 346.65(2)
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