United States District Court, E.D. Wisconsin
DECISION AND ORDER
WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE
Howard is incarcerated at the Green Bay Correctional
Institution in the custody of its warden, Dylon Radtke.
Howard was convicted in Milwaukee County Circuit Court of
armed robbery, being a felon in possession of a firearm, and
first-degree reckless injury. After exhausting his remedies
in the state courts (ECF Nos. 13-5, 13-7), Howard filed a
petition for a writ of habeas corpus in this court (ECF No.
1; see also ECF No. 2 (brief in support)).
federal court may consider habeas relief for a petitioner in
state custody “only on the ground that he is in custody
in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). Following the
passage of the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), a federal court generally may
grant habeas relief only if the state court decision was
“either (1) ‘contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,'
or (2) ‘based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.'” Miller v. Smith, 765 F.3d
754, 759-60 (7th Cir. 2014) (quoting 28 U.S.C. §
on the morning of August 9, 2014, a woman and her cousin had
just parked their car and were heading toward a Milwaukee bar
when a man came up to her, grabbed the strap of her purse,
and said, “Give me your purse, bitch.” (ECF No.
13-10 at 11.) Noticing that the man had a gun pointed at her,
she gave him her purse. (ECF No. 13-10 at 12.) The robber
then raised the gun to the head of the victim, who, fearing
for her life, closed her eyes. (ECF No. 13-10 at 13.) When
nothing happened, she opened her eyes and saw the robber
lower the gun and aim it at her leg. He then shot the victim
in the left leg just above her knee. (ECF No. 13-10 at
13-15.) The robber then walked away. (ECF No. 13-10 at 15.)
victim's cousin drove her to the hospital (ECF No. 13-10
at 19) and the police were contacted. Police officers
responded to the area of the robbery to look for evidence
that might be associated with the crime. In the surrounding
neighborhood an officer found an empty red cosmetics bag, the
apparent contents of which were found about six or seven feet
away. The officer also found a set of keys, and approximately
about 75 yards away found a white iPhone in an alley next to
a home. (ECF No. 13-9 at 58, 68-69.) The victim confirmed
that these items belonged to her and were taken from her in
the robbery. (ECF No. 13-10 at 24-25, 43-44.)
witnesses' descriptions of the robber were inconsistent
as to certain details. The victim described him as
“African American, ” “a little taller than
me, ” clean shaven, wearing a white T-shirt and jeans
and with his hair “cut low, ” about an inch in
length and in a natural style (ECF No. 13-10 at 12, 36, 39,
81.) Her cousin testified that the robber wore a hat and so
she did not see his hair. (ECF No. 13-10 at 57.) But when
previously questioned by a detective, she said he was not
wearing a hat but “had a short Afro with shaved
sides.” (ECF No. 13-10 at 75-76.) The victim testified
that the robber “had a little bit of a mustache,
” and when she said he was “clean shaven”
she meant only that he did not have a beard. (ECF No. 13-10
at 39.) When both victims were shown photographic lineups
several months later, neither was able to identify a suspect.
(ECF No. 13-10 at 30.)
latent fingerprint examiner found a fingerprint on the
victim's cell phone. (ECF No. 13-11 at 20.) A different
examiner entered the print into the Automated Fingerprint
Identification System, which identified 20 possible matches.
(ECF No. 13-11 at 28-29.) The examiner reviewed the first
possible match and concluded it was a match to the print
found on the victim's iPhone. That fingerprint belonged
to Howard. (ECF No. 13-11 at 29.)
was arrested and questioned by police. He denied finding a
cell phone, and specifically denied finding a phone, picking
it up, and then putting it back down. (ECF No. 13-10 at 73.)
He stated that, if had found a phone and no one was around,
he would have kept it. (ECF No. 13-10 at 74.)
the only evidence against Howard was the fingerprint on the
victim's iPhone. As his sole claim for relief, Howard
argues that the fingerprint evidence was constitutionally
insufficient to sustain his conviction.
applicable Supreme Court precedent regarding the sufficiency
of the evidence is well established: ‘whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.'” Saxon v. Lashbrook, 873 F.3d 982,
987-88 (7th Cir. 2017) (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)).
does not argue that it was not his fingerprint on the
victim's iPhone, much less present evidence to support
any such argument. Rather, as the court understands
Howard's argument, he contends there might be an innocent
explanation for how his fingerprint came to be on the phone
other than him having committed the robbery and shooting.
Because the state did not negate those explanations, he
argues he could not be convicted.
points to Borum v. United States, 127 U.S.App.D.C.
48, 380 F.2d 595 (1967), in support of his argument. In
Borum, the defendant's conviction for
housebreaking was based on his fingerprints having been found
on a jar in the victim's home that had contained a coin
collection. Id. at 595-96. A divided panel of the
Court of Appeals for the D.C. Circuit reviewing the
conviction on direct appeal reversed the defendant's
conviction, noting that the government offered no evidence to
support a conclusion that the defendant touched the jar in
the course of the burglary. Id. at 597. Rather, the
court concluded, it was possible the defendant touched the
jar before it ever came into the victim's possession.
Borum is not binding on this court, involved the
very different standard of review applicable on direct appeal
rather than on a state habeas claim, and is factually
distinguishable. See Woods v. Kemper, No. 13-CV-973,
2014 U.S. Dist. LEXIS 23080, at *12 (E.D. Wis. Feb. 24, 2014)
(distinguishing Borum); see also Gibson v.
Collins, 947 F.2d 780, 782 (5th Cir. 1991)
(distinguishing Borum and similar cases due to
standard of review). In fact, the majority decision in
Borum has been criticized, with one judge of the
Court of Appeals for the Seventh Circuit calling it
“hypertechnical” and in “conflict with
the well-settled rule that a jury verdict must be sustained
if ‘after viewing the evidence in the light most
favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.'” United States v.
Bush, 749 F.2d 1227, 1234 (7th Cir. 1984) (Coffey, J.,
dissenting) (emphasis in original) (quoting United States
v. Moya, 721 F.2d 606, 609 (7th Cir. 1983)).
United States v. Bush, 749 F.2d 1227 (7th Cir.
1984), the defendant was convicted of bank robbery based
almost exclusively on the fact that his fingerprints were
found on two boxes that were in the bank's vault. The
defendant had never been an employee or customer of the bank.
Id. at 1229. The Court of Appeals for the Seventh
Circuit implicitly rejected Borum and found the
fingerprint evidence sufficient to sustain the conviction.
Id. at 1230 (“But whether or not we would have
decided the same as the Borum court if presented
with identical facts, we conclude here that ...