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Hodkiewicz v. Richardson

United States District Court, E.D. Wisconsin

September 24, 2019

ERIC HODKIEWICZ, Petitioner,
v.
REED RICHARDSON, Respondent.

          DECISION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

          NANCY JOSEPH, UNITED STATES MAGISTRATE JUDGE.

         Eric Hodkiewicz, a prisoner in Wisconsin custody, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Habeas Pet., Docket # 1.) Hodkiewicz was convicted of nine felony and misdemeanor offenses, and sentenced to eight years of initial confinement and thirteen years of extended supervision. (Id. at 3.) Hodkiewicz contends that his conviction and sentence are unconstitutional. For the reasons stated below, the petition for writ of habeas corpus will be denied and the case dismissed.

         BACKGROUND

         Hodkiewicz’s convictions arose from allegations that he stalked, harassed, and repeatedly assaulted his now ex-wife, S.P., during their acrimonious divorce and child custody proceedings. (Wisconsin v. Hodkiewicz, 2016AP359 (Wis. Ct. App. July 18, 2017), Docket # 1-2 ¶ 1). At trial in March 2014, Hodkiewicz faced nine charges: (1) stalking, as a party to a crime between May 2010 and January 2013; (2) unlawful use of a telephone, as a domestic abuse repeater, on August 10, 2012; (3) disorderly conduct, as a domestic abuse repeater, on August 6, 2012; (4) criminal damage to property, as a domestic abuse repeater, on November 5, 2012; and on the evening of July 1–2, 2013, all of the following: (5) burglary of a building or dwelling; (6) substantial battery-domestic abuse, as a domestic abuse repeater; (7) strangulation and suffocation-domestic abuse, as a domestic abuse repeater; (8) disorderly conduct-domestic abuse, as a domestic abuse repeater; and (9) bail jumping. (Id. ¶ 3.)

         At trial, the prosecution’s theory was that Hodkiewicz was a careful manipulator who harassed and repeatedly assaulted S.P. while methodically concealing his activities. (Trial Day 1 Tr. 184–212, Docket # 14-8.) The defense relied primarily on the lack of eyewitnesses or physical evidence linking Hodkiewicz to the crimes, suggesting that disagreements over their infant son motivated S.P. to fabricate these allegations against Hodkiewicz. (Trial Day 1 Tr. 214–22, Docket # 14-8.) After a six-day trial, the jury convicted Hodkiewicz on all counts. (Docket # 14-8 to Docket # 14-18.) The facts as summarized by the court of appeals are as follows, with additional information and citations to the record as relevant.

         S.P. testified that she and Hodkiewicz were married and living together at a residence on Weed Street in Shawano in May 2010. (Docket # 1-2 ¶ 4.) S.P. was eight months pregnant and had suffered preeclampsia, which required her to remain on bed rest for much of the pregnancy. (Id.; Trial Day 2 Tr. 17, Docket # 14-9.) S.P. claimed that on May 13, 2010, Hodkiewicz pushed her down and rubbed her face against a wall. (Docket # 1-2 ¶ 4.) S.P. testified she did not immediately report this to police because she was afraid and did not want Hodkiewicz to get into trouble. (Id.) However, she told Hodkiewicz to leave and not come back. (Id.) Hodkiewicz left, but he returned several times during the following week. (Id.) As a result, on May 20, 2010, S.P. reported the May 13 incident to police. (Id.) Hodkiewicz denied hitting or pushing S.P. on May 13, 2010. (Id. ¶ 6.) However, he admitted grabbing her wrist and “kind of pulling back and forth” in an attempt to get his phone and pager, which he claimed S.P. had taken from him.[1] (Id.) S.P. testified that, on a subsequent occasion in May 2010, Hodkiewicz pushed her down the stairs. (Id. ¶ 5.) On May 24, 2010, Hodkiewicz filed for divorce. (Id. ¶ 4.)

         S.P. also testified regarding an incident on May 27, 2010, in which Hodkiewicz returned to the residence and chased her into a bathroom. (Docket # 1-2 ¶ 5.) A struggle ensued, during which Hodkiewicz pushed S.P., causing her to hit her head on the sink. (Id.) S.P. testified she was knocked unconscious, and regained consciousness when her mother found her lying on the bathroom floor. (Trial Day 2 Tr. 23–28, Docket # 14-9.) Several witnesses testified about responding to aid S.P. (Testimony of Karen P., Trial Day 3 part 1 Tr. 74–80, Docket # 14-10; Testimony of Jeff Lenzer, Trial Day 3 Tr. 112–16, Docket # 14-10.) S.P. testified that when she went to the emergency room, medical staff questioned her about her injuries, apparently suspicious of her story that she fell down the stairs, and the admitting nurse gave her a “safe word” to say if she had concerns for her safety. (Trial Day 2 Tr. 29–33, Docket # 14-9.) The on-call OB/Gyn, Dr. Halloin, testified that S.P. told him she had been dizzy and fallen; Dr. Halloin testified that preeclampsia does not usually cause fainting. (Trial Day 3 part 1 Tr. 7–24, Docket # 14-10.) Hodkiewicz denied having any contact with S.P. on May 27, 2010. (Docket # 1-2 ¶ 6.)

         The couple’s son J. was born via emergency c-section on May 28, 2010. (Id.) Dr. Halloin testified that it was clear the relationship between S.P. and Hodkiewicz was not good, and that during a conversation with Hodkiewicz outside the delivery room, Hodkiewicz asked about a paternity test for the baby. (Id.) Dr. Halloin testified that at the six-week postpartum visit, S.P. told Dr. Halloin that her bruising had been caused by Hodkiewicz. (Id.) Dr. Halloin dictated a letter for S.P.’s file, noting that S.P. said she was hit and was very upset about the relationship. (Id.) Dr. Halloin explained that in his experience, victims of domestic violence often do not disclose it, at least initially. (Id.) Dr. Halloin testified that S.P. appeared to have already reported the incident to police. (Id.)

         After J.’s birth, S.P. allowed Hodkiewicz to stay at the Weed Street residence at times and permitted him to spend time with J. (Docket # 1-2 ¶ 7.) S.P. testified that Hodkiewicz came to the residence on August 9, 2010, but when S.P. told him it was not “a good time” for a visit, he became “angry and upset.” (Id.) Sometime after Hodkiewicz left, S.P. observed a large cut in the side of an above-ground, rubber-sided swimming pool in the yard. (Id.) Two others testified that they saw the slashed pool: Jed Reinke, who was the father of S.P.’s older son, and a Shawano police officer. (Testimony of Jed Reinke, Trial Day 3 part 1 Tr. 178–80, Docket # 14-10; Testimony of Daniel Conradt, Trial Day 3 part 1 Tr. 41–48, Docket # 14-10.) Hodkiewicz denied involvement (Docket # 1-2 ¶ 7), and an investigation found no evidence connecting the pool slashing to Hodkiewicz (Testimony of Daniel Conradt, Trial Day 3 part 1 Tr. 46–47, Docket # 14-10).

         During the same time period, S.P. testified she found a dead rabbit on her doorstep. (Docket # 1-2 ¶ 7.) S.P. also complained to police that Hodkiewicz would drive by periodically, and that he carried a tape recorder with him. (Testimony of Daniel Conradt, Trial Day 3 part 1 Tr. 43, Docket # 14-10.) Hodkiewicz testified that he knew nothing of the dead rabbit but admitted that he carried a voice recorder on the advice of his attorney and law enforcement. (Trial Day 5 Tr. 103–04, Docket # 14-16.)

         On September 1, 2010, S.P. found an insult keyed into the door of her vehicle. (Docket # 1-2 ¶ 7.) S.P. testified the vehicle was in a locked garage, and that Hodkiewicz had a key and a garage door opener. (Trial Day 2 Tr. 38–39, Docket # 14-9.) S.P.’s father testified that he saw the insult in S.P.’s car door, and saw a garage door opener on the visor of Hodkiewicz’s vehicle. (Testimony of David P., Trial Day 1 Tr. 227–33, Docket # 14-8.) The officer who responded testified that he found no evidence linking this incident to Hodkiewicz, and did not retrieve the garage door opener reportedly in Hodkiewicz’s truck. (Testimony of Ryan Atkinson, Trial Day 3 Tr. 31–40, Docket # 14-10.)

         Several days later, S.P. found a red liquid in her dog’s dish, which her father believed to be antifreeze. (Docket # 1-2 ¶ 7.) She approached Hodkiewicz about it, and he told her not to worry because it was not the toxic kind of antifreeze, a level of knowledge that concerned her. (Trial Day 2 Tr. 40–41, Docket # 14-9.) Hodkiewicz denied involvement (Docket # 1-2 ¶ 7) and testified that he only happened to know that green antifreeze was toxic while red was not (Trial Day 5 Tr. 93–95, Docket # 14-16).

         In spring 2011, Hodkiewicz moved to the marital home and S.P. moved to a home in the village of Pulaski, but still in Shawano County. (Docket # 1-2 ¶ 8; Testimony of S.P., Trial Day 2 Tr. 45, Docket # 14-9.) In September 2011, S.P. testified that she found the body of a stray cat hanging from a tree outside her home. (Docket # 1-2 ¶ 8.) Around the same time, S.P. testified that she found a “pretty big pile of animal guts” in her driveway. (Id.) Again, Hodkiewicz denied involvement in these incidents. (Id.)

         S.P. further testified that, on the evening of December 9, 2011, she was home alone and went to her garage to take out some recycling. (Docket # 1-2 ¶ 9.) While there, she was struck on the head, which caused her to fall and hit her chin on the cement floor. (Id.) When she tried to get up, someone struck or kicked her leg. (Id.) While she was on the floor, S.P. heard Hodkiewicz say that she was crazy, that she should not have J., and that she should call the police because they also thought she was crazy. (Id.) S.P. testified that when her assailant left, she called her mother, and they went to the emergency room. (Trial Day 2 Tr. 58-59, Docket # 14-9.) The emergency room doctor, Dr. Zifferblatt, testified that S.P. said she had been assaulted by her husband and she thought she had been hit by shovel, but she refused to report the incident to police despite encouragement from himself and the nurses. (Testimony of Jocko Zifferblatt, Trial Day 3 Tr. 25-30, Docket # 14-10.) S.P. testified that she talked to a domestic violence shelter, Safe Haven, and reported the December 9 incident to police a few days after it happened. (Trial Day 2 Tr. 60-61, Docket # 14-9.) Police collected a snow shovel from the scene and took a picture showing how S.P.’s injuries fit the handle of the snow shovel. (Testimony of Troy Ugoretz, Trial Day 3 part 1 Tr. 163-72, Docket # 14-10.) A DNA swab on the shovel revealed no identifiable DNA. (Testimony of Randal Dunford, Trial Day 4 part 2 Tr. 14-17, Docket # 14-13.)

         Hodkiewicz denied striking or otherwise harming S.P. on December 9, 2011. (Docket # 1-2 10.) It was undisputed that Hodkiewicz had placement of J. that night. (Id.) In addition, Hodkiewicz’s neighbor, Kyle Thorson, testified that he heard Hodkiewicz’s garage door open sometime between 7:30 and 8:00 p.m. that evening, “so [he] knew [Hodkiewicz] was backing his truck in.” (Id.) Thorson testified that he texted Hodkiewicz and then went over to Hodkiewicz’s garage sometime between 8:00 and 8:30 p.m., and they talked for sixty to ninety minutes. (Id.)

         On January 26, 2012, Hodkiewicz was placed on probation for the May 2010 disorderly conduct convictions. (Testimony of Julie Krause, Trial Day 2 Tr. 232-56, Docket # 14-9.) His probation officer, Julie Krause, testified that she encouraged S.P. to call her and that she developed a rapport with S.P., who called up to 150 times during Hodkiewicz’s one-year probation. (Id.) Krause testified that Hodkiewicz was returned to custody six times during his probation, most of which were in response to information from S.P. (Id.) Krause stated that Hodkiewicz was put on a proximity monitor in part at Hodkiewicz’s request. (Id.)

         S.P. testified that in January 2012 she found an anonymous note inside her mailbox that said “u r dun, ” and on another occasion during the same time frame she found a live cat inside her mailbox. (Docket # 1-2 ¶ 11.) Around that time, her dog went missing and was found thirty miles away. (Id.) On February 1, 2012, S.P. discovered garden shears stuck into the driver’s seat of her vehicle and a meat fork stuck into J.’s car seat. (Id.) A Shawano County deputy testified that he was unsuccessful in finding any fingerprints on either item, opining that they could have been wiped down or the perpetrator could have worn gloves. (Testimony of James Hauer, Trial Day 2 Tr. 217-18, Docket # 14-9.) Hodkiewicz denied involvement in these incidents. (Docket # 1-2 ¶ 11.)

         In March 2012, S.P. moved in with her parents. (Id. ¶ 12.) She testified that at that time she began a new job and obtained a new phone number that she did not give to Hodkiewicz. (Testimony of S.P., Trial Day 2 Tr. 76-77, Docket # 14-9.) In late spring and into summer of 2012, S.P. received a large number of calls on her phone from a restricted or unknown number. (Id. Tr. 76-81.) At some point, S.P. began to answer the calls in an attempt to determine who was making them. (Docket # 1-2 ¶ 23.) On July 13 and July 20, 2012, the caller made insulting remarks and S.P. recognized the caller’s voice as Hodkiewicz’s. (Id.) In a July 27, 2012 call, the caller made insulting comments but S.P. testified she could not identify the caller’s voice because she was at work and it was difficult to hear. (Id.) Also in July 2012, S.P. received an insulting text message with the letter “u” in place of “you.” (Id.) A Shawano County deputy testified that S.P. reported the phone calls in July 2012 and showed him her call log with numerous calls from unknown or restricted numbers. (Testimony of James Hauer, Trial Day 2 Tr. 217–18, Docket # 14-9.)

         In late July 2012, S.P. moved from her parents’ home to an apartment in Brown County. (Docket # 1-2 ¶ 14.) She reported the continuing phone calls to Pulaski police in August 2012. (Testimony of Mark Hendzel, Trial Day 4 Tr. 4, Docket # 14-15.) Officer Hendzel, a Pulaski Police Department investigator, testified that S.P. appeared intimidated and said she felt harassed and threatened. (Id. Tr. 6–7.) Hendzel also testified that the phone records he subpoenaed and reviewed corroborated S.P.’s account of the calls from “unknown” or “restricted” numbers. (Id. Tr. 75.) Hendzel explained that police traced some of the harassing phone calls and texts to a specific TracFone. (Docket # 1-2 ¶ 13.) The activation number for the TracFone was the general number for Little Rapids Paper Corporation, where Hodkiewicz worked. (Testimony of Mark Hendzel, Trial Day 4 Tr. 11– 13, Docket # 14-15.) Hodkiewicz denied activating or using the TracFone that was used to call and text S.P. (Docket # 1-2 ¶ 14.) Moreover, Hodkiewicz was in custody at the Shawano County Jail on a probation hold on May 12, 2012, the date the TracFone was activated. (Id.)

         S.P. testified that she did not tell people other than her parents that she was moving to an apartment in Brown County at the end of July, 2012. (Testimony of S.P., Trial Day 2 Tr. 81-82.) On August 6, 2012, she found some flowers outside the door. (Docket # 1-2 ¶ 14.) S.P. testified she “assumed that somebody either left [the flowers] in the wrong spot or they were . . . from the apartment complex.” (Id.) However, on August 10, 2012, she received a phone call in which the caller asked, “Did you get them?” (Id.) When S.P. did not respond, the caller said, “[Y]ou did, ” and then laughed. (Id.) S.P. testified she recognized the caller as Hodkiewicz. (Id.) Hodkiewicz denied delivering flowers to S.P. or calling her on August 10, 2012. (Id.) S.P. testified that on September 26, 2012, she found flowers on the outdoor balcony of her second-floor apartment. (Docket # 1-2 ¶ 15.) A DNA swab on the second set of flowers was negative for Hodkiewicz. (Testimony of Randal Dunford, Trial Day 4 part 2 Tr. 14–17, Docket # 14-13.)

         In early October 2012, law enforcement searched Hodkiewicz’s house for the TracFone and did not find it, though they found multiple other phones at the residence. (Testimony of Randal Dunford, Trial Day 4 part 2 Tr. 22–24, Docket # 14-13; Testimony of Mark Hendzel, Trial Day 4 part 4 Tr. 17–22, Docket # 14-15.) Officers also interviewed Hodkiewicz twice, and he denied involvement in the phone calls. (Testimony of Mark Hendzel, Trial Day 4 part 4 Tr. 23, Docket # 14-15.) On November 5, 2012, S.P. found an insult scratched into the driver’s side door of her vehicle, using a lowercase “u” in place of “you.” (Id.)

         In May 2013, Hodkiewicz had been charged with stalking, placed on probation, and told to have no contact with S.P. Police had installed a VARDA alarm in S.P.’s apartment, placing it up high in the kitchen to keep it away from children. (Testimony of S.P., Trial Day 2 Tr. 91–92.) In May 2013, S.P. believed she saw Hodkiewicz driving hear her home, and in June 2013, she reported that the rearview mirror on her car was damaged and saw a vehicle registered to Hodkiewicz’s father near her residence. (Id. Tr. 92–93.) Hodkiewicz denied involvement with the rearview mirror (Trial Day 5 Tr. 129, Docket # 14-16), and DNA testing on the rearview mirror was negative for Hodkiewicz (Testimony of Randal Dunford, Trial Day 4 part 2 Tr. 27, Docket # 14–13).

         On the night of July 1–2, 2013, J. was staying with Hodkiewicz at Hodkiewicz’s parents’ residence. (Id. ¶ 16.) S.P. testified she fell asleep on the couch in her apartment at around 10:30 p.m. (Id.) She had taken Percocet because she was recovering from hand surgery, and she admitted the events of that evening were somewhat “fuzzy.” (Id.) She fell asleep sucking on a lollipop to ease the nausea caused by the pain medication. (Trial Day 2 Tr. 96, Docket # 14-9.) At some point, S.P. woke up and went into the bathroom. (Docket # 1-2 ¶ 16.) As she turned on the bathroom light, she felt something-possibly a rubber tube- being wrapped around her neck. (Id.) She also felt something over her mouth that “tasted like powder” or latex. (Id.) A struggle ensued, during which S.P. testified she saw Hodkiewicz’s reflection in the bathroom mirror. (Id.) S.P. lost consciousness and later woke up lying on the bathroom floor, naked from the waist down. (Id.). The lollipop was on the floor, with parts of it stuck in her hair, and the bathroom door was damaged. (Trial Day 2 Tr. 107–08, Docket # 14-9.)

         S.P. testified that she left the bathroom to retrieve her phone, locked herself in the bathroom, and called her mother, then Reinke, then 9-1-1. (Id. Tr. 105–06.) She was taken to St. Mary’s hospital, then transferred to St. Vincent’s for a SANE (sexual assault) exam. (Id. at 110.) The SANE nurse, Larraine Borroughs, testified about the exam she performed on S.P. (Trial Day 3 part 2 Tr. 3–20, Docket # 14-11; Trial Day 4 part 1 Tr. 18–35, Docket # 14-12.) DNA testing on the SANE kit was negative for Hodkiewicz. (Testimony of Randal Dunford, Trial Day 4 Tr. 16–17, Docket # 14-13.)

         Law enforcement attempted unsuccessfully to locate Hodkiewicz after the assault on S.P. (Testimony of James Hauer, Trial Day 2 Tr. 212–25, Docket # 14-9.) Between 4:00 a.m. and 8:00 a.m., an officer drove by Hodkiewicz’s parents’ house repeatedly, as well as the former marital home and Hodkiewicz’s workplace, and did not see Hodkiewicz’s truck at any location. (Id.) Officers took S.P.’s entire bathroom door for testing and found only S.P.’s DNA on it. (Testimony of Randal Dunford, Trial Day 4 Tr. 17, Docket # 14-13.)

         Hodkiewicz testified he was at his parents’ home with J. on the night of July 1–2, 2013. (Docket # 1-2 ¶ 17.) Hodkiewicz’s mother testified she saw Hodkiewicz go to bed at about 9:30 p.m. on July 1, and she next saw him at 6:40 a.m. the following morning. (Id.) She did not hear Hodkiewicz leave the house during the night. (Id.) Hodkiewicz’s father testified he returned home from a meeting at 10:20 p.m. on July 1 and saw Hodkiewicz’s truck parked near the family’s home. (Id.) He testified he did not hear Hodkiewicz leave the house until 5:00 a.m. the next morning. (Id.)

         The manager of S.P.’s apartment complex testified that, although it was difficult, it was possible to access second-floor balconies using furniture on patios beneath, and there was furniture beneath S.P.’s balcony. (Testimony of Peggy Campbell, Trial Day 2 Tr. 225–31, Docket # 14-9.) Pulaski Police Chief Randal Dunford testified about photos he took of S.P.’s balcony as well as a “patio set” and a dented air conditioning unit below the balcony. (Testimony of Randal Dunford, Trial Day 4 Tr. 7–11, Docket # 14-13.)

         In its closing argument, the prosecution described Hodkiewicz as “careful” and “methodical, ” and pointed to evidence that corroborated S.P.’s claims: the physical injuries, the shovel that lined up perfectly with the injury to her face, the notes, the insults scratched in the car, the phone records, the gardening shears and meat fork stuck in the car seats, the linear marks on her neck and the sucker on the floor, the dent in the air conditioning unit underneath S.P.’s balcony, etc. (Trial Day 6 part 1 Tr. 148–75, 201–20, Docket # 14-17.) The defense argued that while it did not dispute that S.P. had been injured, there was no evidence linking those injuries or any of the other alleged crimes to Hodkiewicz. (Id. Tr. 175–201.) After deliberating for under five hours, the jury returned a verdict of guilty on all counts. (Id. Tr. 230–31.)

         Shortly after trial, counsel for Hodkiewicz filed a motion for judgment notwithstanding the verdict based on insufficiency of the evidence, and for a new trial based on court errors. (Docket # 12-7.) After a hearing on the motion, the circuit court denied it. (Docket # 12-8.)

         Hodkiewicz moved for post-conviction relief with eleven distinct arguments, including those he raises in this petition. (Docket # 14-1.) The circuit court held three evidentiary hearings before denying the motion in its entirety, with the exception of correcting an error in calculating Hodkiewicz’s sentence. (Docket # 14-20, Docket # 14-21, Docket # 14-22, Docket # 10-4 at 60–87.) The court of appeals reversed Hodkiewicz’s convictions on Counts 2 and 3 related to the August 2010 incident with the flowers and phone call[2] (Docket # 1-2 ¶¶ 36–43), but otherwise affirmed the denial of Hodkiewicz’s post-conviction motion (Docket # 1-2). Hodkiewicz timely filed a petition for a writ of habeas corpus in this court. (Docket # 1.)

         STANDARD OF REVIEW

         Hodkiewicz’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.

         Habeas relief is available only for state court decisions that are contrary to federal law. This court may not review whether a state court properly applied its own state laws. Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”).

         ANALYSIS

         Hodkiewicz argues that he is entitled to a writ of habeas corpus due to (1) violation of the Confrontation Clause by the use of hearsay evidence (Docket # 1 at 7, Docket # 1-1 at 5– 7, Docket # 15 at 12–14); (2) violation of due process by the use of testimony the State knew or should have known was false (Docket # 1 at 8, Docket # 1-1 at 7–10, Docket # 15 at 14– 21); (3) ineffective assistance of trial counsel for failing to object to the hearsay/confrontation violation, object or respond to the State’s false evidence, or properly respond to other misleading testimony (Docket # 1 at 9, Docket # 1-1 at 10–13, Docket # 15 at 21–36); and (4) violation of the Double Jeopardy Clause by conviction and sentencing for both bail jumping and strangulation (Docket # 1 at 10, Docket # 15 at 36–39).

         1. Procedural Default

         Respondents argue that Hodkiewicz forfeited his confrontation, due process, and double jeopardy challenges by not objecting on those grounds at trial. (Docket # 18 at 14.) Hodkiewicz replies that these claims are not forfeited because the court of appeals did not ...


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