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Nordrum v. Kosbab

United States District Court, W.D. Wisconsin

October 28, 2019

MARK NORDRUM, Petitioner,
v.
BRAD KOSBAB, Respondent.

          OPINION AND ORDER

          JAMES D. PETERSON DISTRICT JUDGE

         Petitioner Mark Nordrum, appearing pro se, has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. He challenges state court convictions from Vernon County No. 12CF98 for multiple counts of driving while intoxicated and causing an accident in which he injured another motorist and her son. The petition is fully briefed and ready for decision. For the reasons set forth below, I conclude that Nordrum has failed to show a denial of his constitutional rights. Accordingly, I will deny his petition.

         BACKGROUND

         The following facts are drawn from the petition and state court records provided by Nordrum and the state.

         In Vernon County No. 12CF98, Nordrum was charged with multiple offenses for operating a motor vehicle under the influence of an intoxicant, crashing into another car, and injuring the driver and passenger in the other car. The underlying allegations accused Nordrum of driving his friend's truck into oncoming traffic and causing a head-on collision with another vehicle. After the crash, the truck ended up in the front yard of a group home for juveniles. Nordrum denied that he was the driver of the vehicle in question and proceeded to a jury trial.

         At trial, Nordrum's friend Eric Johnson testified that he and Nordrum spent the evening of July 27, 2012 drinking at numerous bars. Johnson testified that he and Nordrum rode in Johnson's truck together, with Johnson driving during the first part of the evening and Nordrum driving later, when the crash occurred. Dkt. 15-9, at 150. Johnson testified that although he could not remember the crash, he thought he hit his head on the windshield because his face and nose were bleeding profusely. Id. at 154. (Johnson's blood-stained shirt was introduced into evidence. Pictures of Johnson's sandals were also introduced. After the crash, one of Johnson's sandals was found in the middle of the truck and the other was near the brake pedal. Id. at 157.) Johnson testified that he had a brief phone conversation with Nordrum on the morning after the crash, during which Johnson accused Nordrum of wrecking his truck. Id. at 167. Nordrum responded that he had not been driving. Id.

         Demetrius Smith, a resident of the group home near the crash, testified that the crash woke him up, and that he woke up a staff member, James Satterwhite. Dkt. 15-10, at 7. Smith testified that he and Satterwhite were outside between 15 to 20 seconds after he heard the crash. Id. at 8. Smith also testified that when he arrived outside, he saw Nordrum exit the driver's side of the truck and later, saw Nordrum run away through a corn field. Id. at 9.

         Satterwhite testified next. He stated that when he arrived outside with Smith, he saw the driver-side door swing open and saw Nordrum fall to the ground. Id. at 15. Nordrum told Satterwhite that there was another person in the truck, and Satterwhite walked to the truck and looked inside. He saw a man, later identified as Johnson, “stuck in between the dashboard, the passenger door, and the seat.” Id. Satterwhite opened the passenger door and pulled Johnson out of the truck. Satterwhite testified that there was blood “all over the center console” and from the center console to the passenger side door. Id. at 18. He also said that Nordrum was not bleeding, that Johnson's head was bleeding, and that there was no blood on the driver's side of the vehicle. Id. at 19. Satterwhite testified that Nordrum said to Johnson, “Come on. Let's go, ” and that Nordrum tried to start the truck, but it would not start. Id. at 22-23. Sometime later, when emergency vehicles were approaching, Nordrum put on a shirt, said something to Johnson, and ran into a corn field. Id. at 27.

         The first officer to respond to the crash testified that Johnson was standing near the passenger side of the truck when he arrived on the scene. Dkt. 15-9, at 255. The officer observed that Johnson was bleeding and had facial injuries and appeared to be intoxicated. Id. Another officer testified that a canine-assisted search for Nordrum was unsuccessful. Nordrum was arrested two days later, in Minnesota. Dkt. 15-5, ¶ 6.

         A bartender from one of the bars that Nordrum and Johnson had visited on the night of the crash testified that both men were very intoxicated and that she refused to serve them more than one drink. Dkt. 15-9, at 133. She did not see which man was driving the truck when they left. Id. at 135.

         An analyst from the state crime laboratory testified that a stain on the driver-side air bag tested positive for blood, but that there was not enough blood to determine the source of the blood. Dkt. 15-9, at 206. Three bloodstains were identified on the passenger-side airbag. Nordrum was the source of one stain and Johnson was the source of the other two. Id. at 212. Because the top of the airbag was not labeled when it was removed from the truck, the analyst was unable to place the bloodstains in their relative positions within the truck. Id. at 213. Johnson's blood was also found on the passenger-side “A-frame.” Id. at 210.

         The jury found Nordrum guilty of one count of causing great bodily harm by operation of a vehicle while under the influence of an intoxicant; one count of causing bodily harm by operation of a vehicle while under the influence of an intoxicant; one count of causing great bodily harm by the negligent operation of a vehicle; and one count of causing bodily harm by the negligent operation of a vehicle. He was sentenced to seven-and-a-half years of initial confinement and four years of extended supervision.

         Nordrum filed a motion in the circuit court for a new trial, raising due process and ineffective assistance of counsel claims. After his motion was denied, Nordrum appealed to the Wisconsin Court of Appeals. The court of appeals affirmed, ...


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