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Bacallao v. Foster

United States District Court, W.D. Wisconsin

November 8, 2019

BRIAN FOSTER, Respondent.



         On October 31, 2014, petitioner Eligio Romero Bacallao, Jr., was convicted, after a bench trial, of stalking (two counts), third degree sexual assault (as lesser included offense of a second degree sexual assault charge), unlawful use of a computerized communication system, threats to injure, felony bail jumping (three counts), operating after revocation and disorderly conduct. State v. Bacallao, consolidated Dane County Nos. 13-CF-760, 13-CT-1282 and 13-CF-1863. He was sentenced to a term of 12 years imprisonment, to be followed by six years of extended supervision. Petitioner appealed from his sentence, but was unsuccessful in the state courts. He now seeks a writ of habeas corpus under 28 U.S.C. § 2254, challenging the constitutionality of his conviction on two grounds: (1) the state trial court erred in allowing petitioner to represent himself; and (2) there was insufficient evidence at trial to convict him of sexual assault because the alleged victim's withdrawal of her previous consent to sexual intercourse was not unambiguous.

         For the reasons st forth below, I conclude that petitioner has not established that the Wisconsin Court of Appeals failed to apply clearly established federal law or that it unreasonably determined the facts in light of the evidence presented when it rejected his claims and affirmed his conviction. Accordingly, his petition will be denied.

         The following facts are taken from the petition and the state court records provided by petitioner and the state.


         In consolidated Dane County Nos. 13-CF-760, 13-CT-1282, 13-CF-1863 and 14-CF-213, petitioner was charged with stalking (two counts), second degree sexual assault, unlawful use of a computerized communication system, threats to injure, felony bail jumping (four counts), operating a vehicle after revocation and disorderly conduct. The sexual assault charge was based on allegations that petitioner had nonconsensual sex with L.H., a woman with whom he had been in a relationship for about a month.

         A. Pretrial Waiver of Counsel

         At what was originally scheduled as a preliminary hearing on August 7, 2013, before Dane County Circuit Judge Peter Anderson, petitioner's appointed attorney, Tracy Lencioni, announced that petitioner wanted to fire her. She requested a competency evaluation because she believed there was reason to doubt petitioner's competency to proceed. Dkt. #23-7 at 2. Although petitioner demanded that he be allowed to represent himself, Judge Anderson adjourned the preliminary hearing and ordered a competency evaluation. Id. at 4-7.

         On September 11, 2013, Judge Anderson held a competency hearing with respect to petitioner's stalking charge in No. 13-CF-760. Attorney Lencioni moved to withdraw as petitioner's counsel. Relying on a competency evaluation and report prepared by a Dr. Craig Schonecker, finding petitioner competent to proceed, Attorney Lencioni believed that petitioner was competent to fire her and represent himself. Dkt. #23-8 at 2. Petitioner stated “[s]he's fired, done” and “I'm pro se, your Honor” and asked to proceed pro se. Dkt. #23-8 at 3. Judge Anderson conducted a waiver and competency colloquy pursuant to State v. Klessig, 211 Wis.2d 194, 564 N.W.2d 716, 721 (1997). (The legal standard regarding this colloquy is discussed at length below.)

         During the colloquy, petitioner stated that he was 28 years old, had completed the twelfth grade but had not received a diploma and could read, write and understand English. He stated that he was not being treated for any mental or emotional problems, although he had been treated for some in the past. Petitioner also stated that he had not consumed any drugs or alcohol in the previous 24 hours. He denied having any physical or psychological difficulties that would affect his ability to understand and communicate with the court. Judge Anderson then reviewed the elements and penalties for stalking with petitioner and encouraged him to get a lawyer, but petitioner refused. Judge Anderson told petitioner that he could change his mind later. Petitioner then filled out and signed a form acknowledging the advantages of representation by counsel and the disadvantages of self-representation. Petitioner said that he understood “100 percent” and filled out the form stating that he was waiving his right to counsel freely and voluntarily. He also insisted that he was able to represent himself despite the acknowledged disadvantages. Judge Anderson accepted petitioner's waiver of counsel and considered whether petitioner was competent to represent himself. Relying heavily on Dr. Schonecker's report finding petitioner competent to stand trial, Judge Anderson found petitioner competent to represent himself at the preliminary hearing, but told petitioner that he could change his mind and obtain counsel at a later stage. Dkt. #23-8 at 3-15.

         At an October 7, 2013 initial appearance in No. 13-CF-1863 on bail jumping and disorderly conduct charges, petitioner stated “I'm pro se. I'm representing myself in the Criminal Justice System in the State of Wisconsin.” Dkt. #23-9 at 3. Dane County Court Commissioner Todd Meurer encouraged petitioner to take a form from the public defender's office and advised petitioner that he was facing six years in prison and needed a lawyer. Dkt. #23-9 at 3, 10-11. In addition, at a preliminary hearing in Nos. 13-CF-760 and13-CF-1863 on October 17, 2013, Judge Anderson warned petitioner about the disadvantages of self-representation. Dkt. #23-10 at 26-27.

         At a January 13, 2014 status conference in Nos. 13-CF-760, 13-CF-1863 and 13-CT-1282, petitioner again insisted on representing himself, so Dane County Circuit Court Judge Nicholas McNamara conducted a second Klessig waiver colloquy before accepting petitioner's waiver of counsel. Dkt. #23-11 at 2-6. Petitioner also appeared pro se at a bail hearing in No. 14-CF-213 on February 6, 2014, at which Court Commissioner Meurer stated that he would direct someone from the public defender's office to visit petitioner in jail. Petitioner responded “No, I'm going to pro se represent myself in the Criminal Justice System” and “[t]hat's my right as an attorney.” Dkt. #23-12 at 11. Commissioner Meurer told petitioner that he needed to find a lawyer as quickly as possible. Id.

         At a February 14, 2014 status conference, Judge McNamara again addressed petitioner's insistence on representing himself, reminding petitioner of the January 13 Klessig colloquy during which he had discussed the disadvantages of petitioner representing himself. Because Judge McNamara was concerned about petitioner's competency in light of his non-responsive answers to questions about whether he intended to wear a jail uniform or civilian clothes at trial (petitioner had not yet decided to waive a jury trial), he adjourned the matter for arraignment and a competency determination. Dkt. #23-13 at 2-12.

         At a joint competency hearing and arraignment on March 10, 2014, Judge McNamara noted that Dr. Schonecker had previously found that petitioner was competent to stand trial and assist with his own defense, was not suffering from any particular mental disorder, was not delusional or hallucinating, was able to focus and have logical thoughts and was not suffering from a psychiatric disorder, except that he had a diagnosis of a personality disorder. Petitioner stated that he agreed with Dr. Schonecker's assessment and insisted that he was competent to proceed to trial and represent himself, having done so before. Therefore, Judge McNamara accepted the report and found petitioner competent to stand trial and able to control his behavior. Dkt. #23-14 at 3-7. Even though Judge McNamara encouraged petitioner to obtain a lawyer because of the seriousness of the charges against him, petitioner insisted on ...

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