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Robinson v. Richardson

United States District Court, W.D. Wisconsin

October 16, 2019

REED RICHARDSON, Warden, Stanley Correctional Institution, Respondent.



         Tyrone Robinson, an inmate at Stanley Correctional Institution, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 and paid the $5 filing fee. The petition is now before the court for preliminary review pursuant to Rule 4 of the Rules Governing Section 2254 Cases. In conducting this review, the court has considered the petition and its attachments, Robinson's supporting brief, the decisions of the Wisconsin Court of Appeals on his direct appeal, State v. Robinson, 2014 WI.App. 1, ¶ 8, 352 Wis.2d 245, 841 N.W.2d 580 (unpublished disposition), and his appeal from denial of his post-conviction motion brought under Wis.Stat. § 974.06, State v. Robinson, 2017 WI.App. 21, ¶ 2, 374 Wis.2d 437, 896 N.W.2d 391 (unpublished disposition). Because these materials show plainly that Robinson is not entitled to relief, his petition will be dismissed.


         Robinson's conviction arose from events that took place during the night and early morning hours of November 21 and 22, 2009. Robinson was later charged in a criminal complaint filed in Dane County Circuit Court with committing repeated sexual assaults of the same child, who was then 15 years old; kidnapping; and felony intimidation of a victim.

         The victim described to police a number of sex acts that Robinson forced her to perform in the back of his van, and said he threatened to kill her if she told anyone about his actions. Law enforcement also obtained DNA evidence from the victim, Robinson and his van. The state crime lab issued a report finding that stains in the van contained Robinson's sperm, and the victim's DNA was found under Robinson's fingernails and in the van. A swab of the inner front of Robinson's boxer shorts further revealed a DNA mixture with at least one female and one male contributor. The lab concluded that the victim here was the source of the major female DNA component, while Robinson was a possible male contributor, finding (1) “[t]he probability of randomly selecting an unrelated [female] individual that could have contributed to this mixture profile is approximately” 1 in 59, 000, and (2) male DNA matching Robinson's profile found inside the victim's underwear was shared by 73 out of 14, 540 males.

         After the state crime lab released its findings, Robinson agreed to plead no contest to one count of second-degree sexual assault of a child and one count of false imprisonment. By agreeing to plead to one count of sexual assault of a child, Robinson avoided facing trial on the charge of repeated sexual assaults of a child, which carried a 25-year mandatory minimum prison sentence. The plea hearing was on March 1, 2010. On May 7, 2010, the court sentenced Robinson to 17 years of initial confinement to be followed by 13 years of extended supervision.

         Robinson was appointed a new lawyer for the purpose of pursuing post-conviction relief, who moved under Wis.Stat. § 974.02 to withdraw his plea on the grounds that it was not knowing and voluntary due to defects in the plea colloquy. The only other ground raised in that motion was for sentencing relief on the basis of the state crime lab's own DNA analysis, which petitioner argued proved that it was extremely unlikely that he had sexual intercourse with the victim. After considering the testimony of Robinson and his original counsel, the trial court denied the motion.

         On November 27, 2013, the Wisconsin Court of Appeals affirmed Robinson's conviction; the Wisconsin Supreme Court then denied his petition for review on June 12, 2014. Robinson's conviction became final 90 days later, on September 10, 2014. See Anderson v. Litscher, 281 F.3d 672, 674-675 (7th Cir. 2002) (time for seeking direct review under § 2244(d)(1)(A) includes 90-day period in which prisoner could have filed petition for writ of certiorari with United States Supreme Court).

         On October 5, 2015, a little more than one year after his direct appeal rights had been exhausted, Robinson filed a pro se, post-judgment motion for relief under Wis.Stat. § 974.06, Wisconsin's collateral attack statute. This time Robinson argued that his trial counsel had been ineffective in failing to adequately explain the crime lab's actual findings or do follow up on potentially exculpatory discovery and that his post-conviction counsel was ineffective for failing to raise these same claims on direct appeal. His primary claim was that his trial lawyer had “provided gross misadvice when he misinformed Robinson that his semen had been found in the alleged victim's underwear, ” a fact he claimed was material to his decision to enter a plea. Robinson, 2017 WI.App. 21, at ¶6. Robinson also claimed that trial counsel had provided ineffective assistance by failing to procure exculpatory video surveillance recordings or interview additional witnesses. The circuit court denied petitioner's motion without an evidentiary hearing, finding that the record established conclusively that Robinson was not entitled to relief. Among other things, the court noted that Robinson had testified at the original postconviction hearing “that he chose to plead in order to avoid the mandatory minimum penalty.” Id. ¶ 7.

         The Wisconsin Court of Appeals affirmed the circuit court's decision, reviewing each of Robinson's claims of ineffective assistance of trial counsel and finding them without merit. Robinson, 2017 WI.App. 21, at ¶¶8-12. In particular, the court found that the record refuted Robinson's assertions that (1) his trial lawyer told him that his semen was found inside the victim's underwear and (2) this affected his decision to enter a plea. Specifically, the court noted that Robinson's lawyer had introduced the crime lab report as a defense exhibit at sentencing to demonstrate the lack of inculpatory DNA findings, and “[a]s plain as day . . . told the sentencing court that Robinson's semen was not detected in either his boxers or the victim's underwear.” Robinson, 2017 WI.App. 21, ¶ 8. The court was unmoved by Robinson's claim that he was “too overmedicated to think clearly or to hear trial counsel's sentencing argument, ” noting that: (1) when he entered his plea, he denied that his medication affected his ability to understand what he was doing, id. ¶ 9; (2) when Robinson was later represented by post-conviction counsel and “was by his own admission properly medicated and clear headed, ” he filed a postconviction motion that sought plea withdrawal only on the ground of a defective colloquy, id. ¶ 10; and (3) at his original post-conviction hearing, Robinson complained that he was misinformed that the victim's DNA was found in the front of his boxer shorts, and “[t]hough he emphasized his newfound familiarity with and understanding of the crime lab report, ” he still did not claim that he was misinformed by his counsel as to whether or not his semen was found in the victim's underwear. Id. ¶ 11.

         The Wisconsin Court of Appeals further found that the circuit court had properly denied Robinson's remaining claims without an evidentiary hearing. Id. ¶ 12. Addressing Robinson's claim that his trial lawyer was ineffective for failing to procure other exculpatory video surveillance records, the court noted that not only was Robinson aware that such recordings might exist when he entered his plea, but any claim of prejudice was purely speculative because Robinson “cannot establish that the recordings actually exist, much less their exculpatory value.” Id. ¶ 12. Likewise, the court found that Robinson failed to show any prejudice from his lawyer's claimed failure to interview certain witnesses. Id.

         Finally, with respect to these last two claims, the Wisconsin Court of Appeals found that they were procedurally barred by State v. Escalona-Naranjo, 185 Wis.2d 168, 181-82, 517 N.W.2d 157 (1994), a decision prohibiting a defendant from raising new issues in a Wis.Stat. § 974.06 motion absent sufficient reason. The court observed that in particular, while acknowledging Robinson had asserted the claim that his post-conviction counsel was ineffective as the reason he failed to assert his claims earlier, Robinson had failed in his Wis.Stat. § 974.06 motion to allege with particularity how post-conviction counsel's conduct was deficient or prejudicial. Id. All Robinson said in his motion was that his post-conviction lawyer had failed to raise the issues, which was not enough to overcome the strong presumption that post-conviction counsel rendered effective assistance. Id.

         The Wisconsin Supreme Court denied Robinson's petition for review on July 11, 2017. Robinson filed the instant petition ...

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