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Green v. Pollard

United States District Court, E.D. Wisconsin

October 2, 2019

PHILLIP KAREEN GREEN, Petitioner,
v.
WILLIAM POLLARD, Respondent.

          DECISION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

          Nancy Joseph, United States Magistrate Judge.

         Phillip Kareen Green, a prisoner in Wisconsin custody, was convicted in Milwaukee County Circuit Court of first-degree reckless homicide while armed. (Judgment of Conviction, Answer to Habeas Petition (“Answer”), Docket # 19-1.) He was sentenced to thirty years of imprisonment consisting of eighteen years of initial confinement followed by twelve years of extended supervision. (Id.) He seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 arguing that his conviction is unconstitutional. For the reasons stated below, the petition for writ of habeas corpus will be denied and the case dismissed.

         BACKGROUND

         On the evening of May 24, 2013, and into the early morning hours of May 25, 2013, four men-Green, Nicklaus Gordon, Johntel Henderson, and Ernest Banks-went out to several bars. (State v. Green, Appeal No. 2015AP1126 (Wis. Ct. App. Apr. 26, 2016), Answer, Docket # 19-5 at 2.) What was supposed to have been a fun night out ended with a fight between Green and Banks and ultimately with Green fatally shooting Banks. (Id.)

         As the court of appeals noted, during the jury trial, several witnesses presented different versions of the events. (Id.) Gordon testified that although the four men did not arrive at the first bar in the same car, ultimately, they all ended up riding in Gordon's truck during the evening, with Banks driving, Henderson in the front passenger seat, Green sitting behind Banks, and Gordon sitting behind Henderson. (Transcript of Jan. 7, 2014 - A.M. Jury Trial, Answer, Docket # 19-11 at 9-19.) After going to several bars, the men decided to go to Ricky's, a strip club. (Id. at 17.) After arriving, Banks and Henderson briefly entered the club and then exited, while Gordon and Green remained in the truck. (Id. at 17-18.) Banks and Henderson returned to the truck and Banks stated that they were going to go to the Cheetah Club, another strip club. (Id. at 18.)

         Green indicated more than once that he did not want to go and asked to be taken back to his car. (Id. at 18.) Gordon recalled Banks saying, “If you go home, I'm going to go home too.” (Id.) Gordon testified that from that point, Green and Banks began arguing loudly and that he and Henderson tried to calm the other two men down. (Id. at 21.) Gordon testified that after a couple of seconds, Banks pulled the truck over (id.), got out, and opened Green's door (id. at 24). Gordon was unsure whether Green stepped out of the vehicle on his own or how, exactly, he exited the truck. (Id.) At some point Henderson also exited the vehicle, as did Gordon, who crawled out Green's side of the truck. (Id.) Gordon saw Banks throwing a punch at Green. (Id. at 25.) Henderson tried to grab Banks and Gordon tried to grab Green. (Id.) Gordon testified that they separated them for a few seconds, but they both got loose again. (Id.) Although Gordon stated that the two men were “going at each other, ” he testified that he did not ever see Green throw a punch. (Id. at 25- 26.)

         Gordon observed Green get hit two or three times and eventually fall to the ground. (Id. at 27.) Gordon and Henderson again unsuccessfully tried to separate the men. (Id.) Gordon testified that after Green fell to the ground, Banks kicked Green in the back and then “backs up like in a boxing stance.” (Id. at 28.) Gordon stood in front of Green facing Banks, trying to block Green. (Id. at 29.) Henderson stood to the side of Banks trying to calm him down. (Id.) Gordon testified that after four or five seconds he heard a pop over the right side of his ear and, believing it to be a gunshot, began running backwards. (Id. at 31.) Gordon saw Banks extend his arms out but did not see him fall as he had turned to run. (Id. at 32.)

         Henderson testified that he knew Banks through work and that he was his friend. (Id. at 75-76.) He knew Gordon through Banks and from the gym. (Id. at 76.) Henderson had not met Green before that night. (Id. at 77.) Henderson's account of the early night's events was like Gordon's up until the time that a decision was reached to go to the Cheetah Club. (Id. at 79-85.) Henderson similarly testified that Green asked to go to his car (id. at 86), but contrary to Gordon's testimony, Henderson stated that it was he who stated that if Green went to his car, he was going to go home too “because [Green's] car was parked in front of [Henderson's] house” (id. at 87). Henderson explained that if they were going to go all the way back to his house, there was no reason for him to go back out. (Id.)

         Henderson testified that Gordon persuaded Green to stay out with them. (Id.) Henderson testified that on the way to the strip club, Green and Banks began arguing over which strip club had “better accommodations.” (Id.) Henderson recalled both Green and Banks getting heated and the men getting loud with each other and engaging in name calling. (Id. at 88-89.) Banks pulled the truck over, jumped out of the vehicle, and opened Green's door. (Id. at 89-90.) Henderson testified that Green got out of the vehicle and the two men were “nose to nose, ” arguing back and forth. (Id. at 90.)

         Henderson stated that he exited the vehicle and grabbed Banks and put him inside the driver's seat, trying to calm him down. (Id.) However, Green continued to mouth off and before Henderson knew it, Banks and Green were back nose-to-nose with each other. (Id. at 91.) The two men started fighting and, according to Henderson, then started swinging and Banks hit Green, who lost his balance and fell to the ground. (Id. at 92.) Henderson testified that Banks kicked Green in the back while he was on the ground. (Id.) Henderson recalled that he was trying to restrain Banks and Gordon was trying to restrain Green. (Id. at 93.)

         Henderson testified that Gordon was between Green and Banks. (Id. at 94.) Unlike Gordon's testimony, Henderson stated that he saw both men throw punches. (Id. at 95.) While trying to restrain the men, Henderson testified that Banks pulled away from Henderson and stood in a boxing stance. (Id. at 97.) Henderson testified that Gordon was still between Green and Banks when he saw Green reach over Gordon and shoot Banks. (Id.) Henderson ran. (Id.) On cross-examination, Henderson testified that during the fight, Green had his vest pulled over his head by Banks, but Banks was not striking him at that time. (Id. at 113-14.)

         Green testified in his own defense at trial. Green explained that he had a concealed carry permit for the gun that was used in the shooting. (Transcript of Jan. 7, 2014 - P.M. Jury Trial, Answer, Docket # 19-12 at 28.) On the night in question, Green testified that Gordon asked him to meet him at a bar called Dale's. (Id. at 32.) Green was unaware that Gordon was with anyone else at the bar. (Id.) Upon arriving, Green saw Banks and Henderson. (Id.) The four men stayed at Dale's for approximately twenty minutes and Green had one beer. (Id. at 32-33.) Green testified that Gordon suggested going to the strip club while at Dale's, and Green said no. (Id. at 33.) After leaving Dale's, Green testified that they went to 502 (another bar) because Green's fiancée was there celebrating Green's cousin's birthday. (Id.) Green testified that Banks insisted on the four men riding together, even though Green had stated that he would just meet them all there. (Id. at 34.)

         Green testified that the four men were at 502 for approximately twenty-five to thirty minutes when Gordon told Green that they were leaving. (Id. at 37-38.) Green stated that the other men wanted to go to a strip club, but Green told Banks that he wanted to return to his car because he had to work in the morning. (Id. at 38.) Green stated that Gordon persuaded him to go along and not return to his car. (Id.) Green testified that the four men initially drove to Ricky's. (Id. at 39.) All four men exited the vehicle; Banks and Henderson went to the door while Gordon and Green were still by the truck waiting to cross the street. (Id.) Green testified that he looked and saw Banks and Henderson returning to the truck, so he got back into the vehicle. (Id.)

         After the four men returned to the truck, Banks began driving. (Id. at 40-41.) Green testified that Banks stated, “Fuck this shit. I'm going to the Cheetah Club, ” to which Green responded that he wanted to return to his car. (Id. at 41.) Green testified that Banks responded, “Ain't nobody going to keep - - ain't nobody going to be doing all this shit, you're going with us.” (Id.) Green asked Gordon what was wrong with his friend, to which Banks responded that he was going “to beat [Green's] ass.” (Id.) Green testified that Banks stated that he wanted “to beat [Green's] ass anyway” and “as a matter of fact, [Banks was] going to beat [Green's] ass now.” (Id.) Green testified that it was at this point Banks pulled the truck over. (Id.)

         Once the vehicle stopped, Green testified that Banks got out, opened Green's door, and started pulling Green out of the truck by his shirt. (Id. at 42.) Outside of the truck, Banks hit Green and Green moved to the rear of the vehicle, where Banks punched him several times. (Id.) Green testified that he used his hand to try to maneuver away from Banks, at which time Banks pulled Green's vest over his head, obstructing his view. (Id. at 42-43.) Green testified that he could feel Banks on him, punching him, while Green tried to take his vest from his head. (Id. at 43.) Green had his right hand on his gun because he did not want Banks to take it. (Id.) Green testified that he was trying to get up, but Banks “swung [him] down, punching [him].” (Id.) Green was on one knee with Banks pulling him towards him. (Id.) Green ended up on his back. (Id.)

         Green testified that Gordon was on Green's left, standing sideways, while Banks was three feet in front of him. (Id. at 44.) As Green was getting up from the ground, he saw Banks coming towards him. (Id.) He did not see Henderson anywhere. (Id. at 45.) Green pulled his gun out of its holster, put it upward, and shot it. (Id.) Green testified that he felt threatened for his life and that he never punched Banks or ever had his hands on him. (Id.) Green testified that he saw Banks stumble back and fall and he saw Gordon jump in the truck and pull off. (Id. at 46-47.) Green then took out his phone and called the police, explaining that he had just shot someone. (Id. at 47.) Green stayed at the scene until the police arrived. (Id. at 48.)

         Contrary to Gordon and Henderson's testimony, Green testified that he did not remember seeing Banks in a boxing stance and instead saw Banks coming at him. (Id. at 59- 60.) Green also testified that he did not shoot his gun over Gordon and in fact Gordon was never standing between Green and Banks. (Id. at 60.) Green testified that he did not remember Gordon trying to hold him back or Henderson trying to hold Banks back; rather, no one tried to break up the fight at any point. (Id. at 67-68.)

         On cross-examination, Green admitted telling a detective that he punched Banks and conceded that during an earlier interview, he never told detectives that Banks was “coming at him” when he shot Banks. (Id. at 54, 69-70.)

         Shaquita Glover, who lived across the street from where the incident took place, also testified. (Transcript of Jan. 6, 2014 - P.M. Jury Trial, Answer, Docket # 19-10 at 68.) Glover heard a car, music, and several men arguing and hollering. (Id. at 73.) Glover initially did not think anything of it, but was drawn to her window when she heard a man say, “Let me go. Let me go.” (Id. at 75.) Glover testified that she observed two men “tussling” and two other men trying to break up the fight. (Id. at 76.) Although Glover was not close enough to see the individuals' faces, she was able to generally describe Banks as wearing a red shirt and Green as wearing a vest. (Id. at 77.)

         Glover testified that Banks was really loud and that Green was pulling Banks and Banks was trying to get away from Green. (Id. at 78-79.) Glover did not remember seeing anyone get punched, though she saw Banks throw a punch at Green. (Id. at 81, 92.) On cross-examination, Glover acknowledged that Green was not that aggressive and did not seem to be the one causing the problem. (Id. at 93.) At the time Banks was shot, Glover testified that the four men were standing very close to each other, almost in a huddle, when she heard a pop and saw Banks fall to the ground. (Id. at 99.) Glover testified that Green kept saying “Get off me, ” even after Banks fell to the ground. (Id. at 103.)

         Detective Yvette Panfil testified that she took pictures of Green the afternoon of May 25. (Docket # 19-12 at 5, 9.) Detective Panfil testified that Green had visible redness on his back, but no other major injuries besides some redness and minor abrasions. (Id. at 6-7.) The State also introduced evidence of security camera footage from a nearby building. (Docket # 19-10 at 106.) Although the video did not capture the entire incident, it did reflect that the entire incident took place in one minute and twenty-two seconds. (Id. at 107-15.)

         Finally, the medical examiner testified that Banks died from a gunshot wound to the head. (Docket # 19-11 at 127.) She testified that the bullet's trajectory was front to back, left to right, and upward; however, she could not state what position the body was in when the gunshot wound occurred or exactly where the gun was located when fired. (Id. at 128-29.) The medical examiner estimated that the gun's muzzle was eighteen to twenty-four inches from the skin's surface when it was fired, based on the stippling seen on Bank's wounds. (Id. at 131.)

         Green argued that he acted in self-defense or, alternatively, that his conduct did not show that his actions demonstrated utter disregard for human life, a necessary element of first-degree reckless homicide. (Transcript of Jan. 8, 2014 - A.M. Jury Trial, Answer, Docket # 19-13 at 26-30.) In addition to submitting to the jury the instruction for first-degree reckless homicide, the court submitted the instruction for second-degree reckless homicide (which does not include as an element utter disregard for human life), as a lesser-included offense. (Id. at 3-11.) The court also instructed the jury on ...


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