Marshall v. State of Wisconsin

Filing 27

DECISION AND ORDER signed by Judge Pamela Pepper on 1/4/2016 DENYING 1 Habeas Corpus Petition and DISMISSING the petition effective immediately. The court further ORDERS that it will not issue a certificate of appealability. (cc: all counsel; by US Mail to petitioner)(pwm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DAVID MARSHALL,

Case No. 13-cv-111-pp
Petitioner,

v.
STATE OF WISCONSIN,
Respondent.

DECISION AND ORDER DENYING PETITION (DKT. NO. 1) AND DISMISSING
CASE
_____________________________________________________________________________
INTRODUCTION
On January 30, 2013, David Marshall, representing himself, filed a
petition for a writ of habeas corpus relief under 28 U.S.C. §2254, asserting that
his state conviction and sentence violated the Constitution. Dkt. No. 1. The
petitioner is incarcerated at Waupun Correctional Institution, where he is
serving a term of eight years’ imprisonment for a conviction on two counts of
reckless endangerment to safety. Id. at 2. For the reasons that follow, the court
denies and dismisses the petition.
I.

PROCEDURAL HISTORY
A.

State court trial and sentencing

On June 24, 2009, a jury found the petitioner guilty of two counts of
reckless endangerment to safety. Id. at 2. On October 26, 2009, the state court
entered a judgment of conviction, sentencing the petitioner to eight years’
imprisonment (four years for each count, running consecutively) and eight
1

years’ extended supervision (four years for each count, running consecutively).
Dkt. No. 14-1 at 1.
B.

First motion for post-conviction relief

In December of 2009, the petitioner filed a motion for post-conviction
relief with the Outagamie County Circuit Court. State v. Marshall, No.
2007CF609, Dkt. No. 86, available at https://wcca.wicourts.gov. When the
state court denied that motion, the petitioner filed a direct appeal of his
judgment of conviction, and a direct appeal of the order denying postconviction relief, with the Wisconsin Court of Appeals. Dkt. No. 25 at 3. See
also Dkt. No. 14-3.
C.

Direct appeal of both conviction and denial of post-conviction relief

On March 17, 2011, the petitioner filed a brief in support of his “appeal
from the decision and order denying postconviction relief.” Dkt. No. 14-2. He
presented three issues to the court: (1) that trial counsel provided ineffective
assistance when she failed “to file a motion to demonstrate that the action
taken by the officer was illegal, violated the defendant 4th amendment rights,”
id. at 2, 28; (2) that the trial counsel provided ineffective assistance when she
failed “to use previous testimon[ies] and the audio recording of Deputy Krzoska
to impeach or discredit [his] testimony at trial,” id. at 2, 32; and (3) that the
court erred when it denied his motion arguing that the district attorney
“committed unethical behavior when she allowed Deputy Krzoska and Officer
Melby to testif[y] untruthfully,” id. at 34.

2

On January 31, 2012, the Wisconsin Court of Appeals “reject[ed]” the
petitioner’s “arguments and affirm[ed] the order.” Dkt. No. 14-6 at 2. The
appellate court found that the trial court
appropriately denied Marshall’s postconviction motion without a
hearing because the motion fail[ed] to allege sufficient material
facts that, if true, would entitle Marshall to relief. Marshall’s
motion [did] not establish deficient performance or prejudice from
his trial counsel’s performance, and his claim that the officers
committed perjury based on the minor inconsistences in their
testimony [was] frivolous. . . . Marshall also failed to establish
deficient performance or prejudice from his counsel’s failure to
impeach the officers’ trial testimony with inconsistent statements
made at the preliminary hearing and in earlier police reports.
Id. at 3-4 (internal citations omitted). On February 15, 2012, the petitioner
sought review of this decision by the Wisconsin Supreme Court. Dkt. No. 14-7.
In a one-sentence order dated June 12, 2012, the court denied the petition for
review. Dkt. No. 14-8.
D.

Filing of instant federal habeas petition

On January 30, 2013, the petitioner filed the current petition for habeas
corpus relief in the United States District Court for the Eastern District of
Wisconsin. Dkt. No. 1. On April 15, 2013, the respondent filed an answer to the
petition, alleging that the petitioner had not exhausted his state-court
remedies. Dkt. No. 14. On May 6, 2013, the petitioner asked this court to stay
the federal proceedings so that he could exhaust his remedies. Dkt. No. 16. On
June 3, 2013, the court entered an order staying the case and requiring the
petitioner to file regular status reports. Dkt. No. 18.

3

E.

Second motion for post-conviction relief

On June 17, 2013, the petitioner filed a motion for post-conviction relief
in the Outagamie County Circuit Court, alleging that his post-conviction
counsel was ineffective and explaining why he had not raised this issue earlier.
Dkt. No. 25-1. He also sought additional discovery and access to the interview
of Officer Krzoska, and he asked the circuit court to reconsider its denial of his
pre-sentence motion seeking a reversal of the jury’s finding of guilt. Id. On July
29, 2013, the circuit court denied the motion, stating that the petitioner
“fail[ed] to state a claim for ineffective assistance of postconviction counsel, as
he elected to proceed pro se on appeal,” and that he “fail[ed] to assert any
grounds for relief.” Dkt. No. 25-2 at 1.
On October 9, 2013, the petitioner filed an appeal from the denial of the
second post-conviction motion with the Wisconsin Court of Appeals. Dkt. No.
25-3. On October 15, 2014, the court of appeals affirmed the circuit court’s
order denying post-conviction relief. Dkt. No. 25-6. The court noted, “Because
Marshall was already provided discovery of [Officer Krzoska’s interview] prior to
trial, he is not entitled to postconviction discovery of the same evidence.” Id. at
3 (citation omitted). Next, the court denied the petitioner’s efforts to challenge
the circuit court’s decision to not reverse the guilty judgment, because
Marshall “should have” made that argument “on his first appeal and he
provided “no reason . . . for failing to properly raise this challenge on direct
appeal.” Id. at 4. The court then rejected the ineffective assistance arguments
because the court had already addressed that on direct appeal. Id. (citation
4

omitted). Finally, “[t]o the extent Marshall . . . challenge[d] the sufficiency of the
evidence to support his convictions,” the court of appeals found that he had
“failed to provide a reason for his failure to raise that on direct appeal” and
found him “procedurally barred from raising these matters now.” Id. at 4-5.
On November 7, 2014, Marshall sought review of that decision by the
Wisconsin Supreme Court. Dkt. No. 25-7. In another one-sentence order, this
one dated February 10, 2015, the Wisconsin Supreme Court denied the
petition for review. Dkt. No. 25-8.
H.

Resumption of instant federal habeas case

On February 17, 2015, the petitioner filed an update in this court,
indicating that he had exhausted his remedies. Dkt. No. 21. On May 6, 2015,
the court lifted the stay and entered a scheduling order for briefing. Dkt. No.
22. As of July 21, 2015, the parties had fully briefed the case.
II.

THE GROUNDS ALLEGED IN THE PETITION
On pages six through nine of the petition, the petitioner raised four

grounds for relief, Dkt. No. 1, and he provided detailed support for these
grounds in an appendix to the petition, id. at 14-21. In section VII of the
petition, entitled “Request for Relief,” the petitioner asks the court “[t]o grant
petitioner a new trial or dismiss the case under Double Jeopardy Clause.”1 Id.
at 12.
It appears that by using the phrase “Double Jeopardy Clause,” the petitioner
means to imply that if this court were to find that his first trial was flawed, it
could not order a new trial for him, because the new trial would violate the
Double Jeopardy Clause. The petitioner’s understanding of what the Double
Jeopardy Clause prohibits is incorrect, but because the court does not find
1

5

The first ground the petitioner raises in the petition alleges that his
appellate counsel was ineffective, because counsel failed to argue that his trial
counsel was ineffective “for her failure to introduce the tape recorded interview
of Matthew Kroska to impeach his testimony at trial.” Dkt. No. 1 at 7.
According to the petitioner, there existed a tape-recorded interview of Officer
Krzoska, recorded “less than 24 hours” after the “alleged incident, where
Krzoska shot [the petitioner] in the chest.” Id. at 14. The trial court judge heard
arguments in chambers about whether or not the defense could use the
recording as evidence at trial. Id. The court ruled that the officer should testify
in person, and that if his testimony was inconsistent with the content of the
recorded interview, the defense could use the recording to impeach the
testimony for inconsistent statements. Id. The petitioner provides some of the
details of the officer’s testimony, and argues that it was inconsistent with the
statements Krzoska made in the interview. Id. at 16-17. He argues that his trial
counsel was ineffective because she did not impeach Krzoska with the
interview, id. at 15, and that his appellate counsel was ineffective because he
didn’t argue that trial counsel was ineffective for failing to use the recording to
impeach Krzoska, id. He argues that because of these two instances of
ineffective assistance of counsel, this court should grant him a new trial. Id.
Ground two of the petition states, “The petitioner is requesting this court,
to allow the defense to use the tape recorded interview of Matthew Krzoska to
be a part of the record.” Id. at 7. In support of this request, the petitioner
that the petitioner’s first trial was flawed, it need not address the petitioner’s
misunderstanding further.
6

argues that his appellate counsel was ineffective because he failed to raise “the
contents of the tape recorded interview by Matthew Krzoska on direct appeal.”
Id. at 16. The petitioner again goes into detail about the inconsistencies he
alleges between Krzoska’s trial testimony and his statements during the
recorded interview. The petitioner argues that this court should grant him a
new trial based on his appellate counsel’s ineffective assistance, and should
order that he may use the tape recording against Krzoska at the new trial. Id.
at 16-17.
The third ground the petitioner raises alleges that his trial counsel was
ineffective when she “fail[ed] to object to Matthew Krzoska, sitting at the state’s
table while others witnesses testifying in the case.” Id. at 8. He explains that
during the trial, Krzoska sat at counsel table next to the prosecutor. He argues
that his trial counsel should have realized that allowing Krzoska to sit in the
courtroom during the testimony given by all the other witnesses was a “big
mistake.” Id. at 18. According to the petitioner, Krzoska heard the testimony of
three witnesses to “the shooting in the parking lots on July 6, 2007.” Id. This
was “[detrimental] to the case,” because it allowed the officer to “[base] his
answers [on] all the witnesses that testif[ied] before him.” Id. Much of the
petitioner’s discussion of this issue, however, circles back to his concern that
his trial counsel did not use Krzoska’s recorded statement to impeach him. Id.
at 18-19.
In his fourth ground, the petitioner argues that the district attorney
exhibited “unethical behavior when she allowed” witnesses “to testify
7

untruthfully at the defendant’s trial.” Dkt. No. 1 at 9. While he states that
“both deputy’s” provided “inconsistent and contradictory” testimony, id. at 20,
the petitioner consistently refers to Krzoska’s testimony as the testimony that
was false, and inconsistent. He argued that the district attorney did not solicit
false evidence, but that she “allow[ed] it to go uncorrected,” and that she “ha[d]
the responsibility to correct” that testimony. Id. at 20-21.
III. THE RESPONDENT’S OPPOSITION
In his opposition brief, the respondent acknowledges the petitioner’s four
claims: (1) ineffective assistance of the petitioner’s trial counsel; (2) a request
for admission of the recorded interview of Krzoska; (3) ineffective assistance
from appellate counsel; and (4) prosecutorial misconduct. Dkt. No. 25 at 3. The
respondent asserts, however, that “[the petitioner’s] supporting brief . . . has
reduced and combined his claims.” Id. (citing Dkt. No. 21 at 2-7). According to
the respondent, the petitioner “abandoned” his argument that the trial attorney
was ineffective because she failed to object to the presence of Krzoska in the
courtroom during trial, and “commingled” the other claims into one argument:
that the trial attorney was ineffective for failing to introduce the deputy’s
interview into evidence. Id.
IV.

THE PETITIONER’S FEBRUARY 17, 2015 STATUS REPORT
As noted earlier, the court stayed the federal case to allow the petitioner

to exhaust claims in state court, but ordered the petitioner to file periodic
status reports in this case. On February 17, 2015, the petitioner filed one such
status report. Dkt. No. 21. He used this status report to further argue his case.
8

He repeated his argument that his trial counsel was ineffective in not using
Krzoska’s recorded interview to impeach him. Id. at 2. He repeated his
argument that he received ineffective assistance of counsel from his appellate
lawyer, because that lawyer did not argue that trial counsel was ineffective for
failing to use the recorded interview as impeachment. Id. at 5-6. And he
repeated his argument that the district attorney allowed the jury to hear false
testimony without correcting it. Id. at 3, 6.
V.

THE COURT’S IDENTIFICATION
PETITIONER HAS RAISED

OF

THE

CLAIMS

THE

It is true that it is difficult to pinpoint the petitioner’s claims. Some
of the claims appear duplicative. They all center around the petitioner’s
belief that the recorded interview would have pointed up inconsistencies
in Krzoska’s trial testimony, and that his trial counsel was ineffective for
failing to use it. The court finds that, regardless of how he has organized
his arguments, or how they may blend or blur certain issues, the
petitioner has alleged two constitutional violations.
First, he has argued that both his trial counsel and his appellate
counsel denied him his Sixth Amendment right to effective assistance of
counsel. At the heart of this claim is the petitioner’s assertion that his
trial attorney did not use the recorded interview to impeach Krzoska, and
the appellate attorney didn’t raise that issue. Second, he has alleged
prosecutorial misconduct. This claim goes to the petitioner’s Fourteenth
Amendment right to due process.
The court will analyze these two claims.
9

VI.

STANDARD OF REVIEW
“A petitioner in custody pursuant to a state court judgment may receive

a writ of habeas corpus ‘only on the ground that he is in custody in violation of
the Constitution or laws or treaties of the United States.’” Gilbert v. McCulloch,
776 F.3d 487, 491 (7th Cir. 2015) (quoting 28 U.S.C. §2254(a)). The petitioner
must show that the state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States; or resulted in a decision that was
based on unreasonable determination of facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. §2254(d). “The Supreme Court has
made clear that federal courts are not to find lightly that a state court’s
decision was ‘contrary to, or involved an unreasonable application of clearly
established Federal law, as determined by the Supreme Court of the United
States.’” Gilbert, 776 F. 3d at 491 (quoting 28 U.S.C. §2254(d)(1)).
“Even if there is clearly established federal law . . . on point,” this court
may only grant relief “if the state court decision was ‘contrary to, or an
unreasonable application of,’ that federal law.” Id. at 492 (quoting 28 U.S.C.
§2254(d)(1)). “A state court’s determination that a claim lacks merit precludes
federal habeas relief so long as ‘fairminded jurists could disagree’ on the
correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86,
101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
“Section 2254(d) reflects the view that habeas corpus is a ‘guard against
extreme malfunctions in the state criminal justice systems,’ not a substitute for
10

ordinary error correction through appeal.” Harrington, 562 U.S. at 102-03
(quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)). The petitioner
“must show that the state court’s ruling on the claim being presented in federal
court was so lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington, id. at 103.
VII.

ANALYSIS
A.

Ineffective assistance
1.

The petitioner cannot show that his trial counsel’s
performance was deficient, that it fell below objective
standards of reasonableness, or that it prejudiced his
defense.

The Sixth Amendment guarantees a criminal defendant’s right “to have
Assistance of Counsel for his defence.” U.S. CONST. amend. VI. “The benchmark
for judging any claim of ineffectiveness” of that counsel “must be whether
counsel’s conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a just result.”
Strickland v. Washington, 466 U.S. 668, 686 (1984). In the context of habeas
corpus, the federal court must determine if the state court’s determination “was
unreasonable.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citation
omitted). This “is a general standard” and “a state court has even more latitude
to reasonably determine that a defendant has not satisfied the standard.” Id.
(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
The petitioner must demonstrate (1) “that counsel’s performance was
deficient and fell below an objective standard of reasonableness” to such a
11

degree that it “‘deprive[d] the defendant of a fair trial’” and (2) “that counsel’s
deficient performance prejudiced his defense.” Carter v. Butts, 760 F.3d 631,
635 (7th Cir. 2014) (citing Strickland, 466 U.S. 668 (1984)). “It is not enough
for the defendant to show that the errors had some conceivable effect on the
outcome of the proceeding.” Id. (internal quotation marks and citation omitted).
The petitioner must show to “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Id. (citation omitted). “A reasonable probability is one that . . . undermine[s]
confidence in the outcome of the trial proceedings.” Id. (citation omitted).
In the case at bar, the petitioner argues that because his trial counsel
did not use Krzoska’s recorded interview, the jurors could not properly evaluate
the witness’s credibility at trial. Dkt. 21 at 2-3. He asserts that this created “[a]
reasonable probability of a differen[t] result.” Id. at 3. See also Dkt. No. 1 at 1415. He has asserted that the trial counsel failed to object to Krzoska’s presence
in the courtroom while other witnesses testified, id. at 18, but this claim is
based on his argument that his trial counsel was ineffective when she did not
use the tape-recorded interview to impeach Krzoska’s trial testimony, id. at 19.
The Wisconsin Court of Appeals reviewed the petitioner’s ineffective
assistance arguments in detail. Dkt. No. 14-6 at 3-4. The court determined that
the petitioner did “not establish deficient performance or prejudice from his
counsel’s performance.” Id. at 3 (citation omitted). In terms of using the
deputy’s previous statements to impeach his testimony, the court of appeals
found:
12

The jury heard testimony from numerous witnesses and viewed
videotape footage from the surveillance camera. In addition,
counsel did specifically introduce the officers’ numerous
statements and pointed out some inconsistencies. Pointing out
additional minor inconsistencies would not have benefited the
defense.
Id. at 4 (citing State v. DeLeon, 127 Wis. 2d 74, 85 (Ct. App. 1985)).
The petitioner’s federal briefs have not demonstrated that this ruling
“was so lacking in justification that there was an error well understood . . . in
existing law beyond any possibility for fairminded disagreement.” Harrington,
562 U.S. at 103. He asserts over and over that Krzoska’s trial testimony
contained numerous inconsistencies, but points to only a few specific
examples. He argues, for example, that in the tape-recorded interview, Krzoska
indicated that the petitioner was not trying to run Krzoska over, while at trial,
Krzoska testified that he feared he was going to be run over by the petitioner.
Dkt. No. 1 at 17. This is not an inconsistency; the fact that Krzoska might have
stated that he didn’t think the petitioner was trying to run him over does not
mean that Krzoska didn’t still have a legitimate fear that the petitioner would
run him over. He argues that, while Krzoska testified that he was in front of the
vehicle when he fired at the petitioner, the expert witnesses testified that
Krzoska was at the right of the vehicle. Id. at 20. But the petitioner didn’t need
the recorded interview to note this inconsistency—the jury would have heard it.
The petitioner goes into more detail about alleged inconsistencies in his
February 17, 2015 status report (which was supposed to be a report on how
his state post-conviction motion was progressing). Dkt. No. 21. But it is
difficult for the court to ascertain how many of the statements the petitioner
13

points to are “inconsistent,” or why the jury would have found differently had it
had these “inconsistencies” pointed out. For example, the petitioner argues
that in the recorded interview, Krzoska testified that he didn’t see “him”
(perhaps the petitioner) remove anything from “the cart,” while at trial, Krzoska
testified that a car blocked his view of “the cart.” Id. at 3-4. It is not clear how
these statements are inconsistent—if Krzoska couldn’t see the car, then he
couldn’t see anyone take anything out of the cart—and the petitioner does not
explain how any testimony about a cart relates to the outcome of his trial.
Several of the “inconsistencies” he alleges he could have proven are
inconsistencies between Krzoska’s trial testimony and statements the petitioner
alleges other officers made in sworn affidavits. Id. at 4. Again, the recorded
interview would not demonstrate those inconsistencies.
The petitioner has failed to demonstrate that his trial counsel was
ineffective in not using the recorded interview, and he certainly has not
demonstrated that had she used the interview, there is a reasonable probability
that the outcome of the case would have been different. The court finds the
petitioner’s Sixth Amendment ineffective assistance of counsel claim to be
without merit.

14

2.

The petitioner represented himself on appeal, making his
ineffective assistance of appellate counsel claim meritless and
frivolous.

On December 17, 2009, the District III Court of Appeals ordered the
State Public Defender to appoint counsel to represent the petitioner on his
direct appeal. State v. David J. Marshall, Appeal No. 2010AP001688, available
at http://wscca.wicourts.gov. On June 28, 2010, Attorney Andrew Morgan filed
a “no-merit notice of appeal” in the circuit court. State of Wisconsin v. David J.
Marshall, Case No. 2007CF000609, available at https://wcca.wicourts.gov. On
July 14, 2010, Attorney Morgan filed a motion to withdraw as counsel. State v.
David J. Marshall, Appeal No. 2010AP001688. The court granted that motion
on August 12, 2010. Id. From that point on, it appears that the petitioner
represented himself.
The Wisconsin Court of Appeals provided additional facts in its October
15, 2014 decision. Dkt. No. 25-6. The court stated, “After Marshall’s
sentencing, a newly-appointed attorney filed a no-merit notice of appeal. Rather
than proceed with the no-merit appeal, Marshall agreed that his attorney
should withdraw so Marshall could pursue a pro se postconviction motion.” Id.
at 2-3.
“To succeed on an ineffective assistance of appellate counsel claim,
petitioner must show that ‘appellate counsel failed to raise an issue that was
both obvious and clearly stronger than the issues he did raise.’” Smith v.
McKee, 598 F.3d 374 (7th Cir. 2010) (quoting Smith v. Gaetz, 565 F.3d 346,
352 (7th Cir. 2009)). In ground one of the petition, the petitioner asserts,
15

“Appellate Counsel . . . was ineffective [for] his failure to raise ineffective
assistance of counsel [of trial counsel] for her failure to introduce the tape
recorded interview of [Deputy Krzoska] to impeach his testimony at trial.” Dkt.
No. 1 at 6. In the context of the facts recounted above, it appears that the
petitioner is arguing that he believes there was an appellate issue of merit—the
issue of trial counsel failing to use the recorded interview to impeach Krzoska—
and that his appellate attorney was ineffective in filing a no-merit notice of
appeal, rather than filing an appeal on this issue.
This court found above that the petitioner has failed to demonstrate that
his trial counsel was ineffective in failing to use the recorded interview for
impeachment. That finding necessarily requires the court to find that appellate
counsel Morgan was not ineffective for failing to raise the issue. The United
States Supreme Court long ago held that no constitutional provision suggests
that “the indigent defendant has a constitutional right to compel appointed
counsel to press nonfrivolous points requested by the client, if counsel, as a
matter of professional judgment, decides not to present those points.” Jones v.
Barnes, 463 U.S. 745, 751 (1983). Indeed, the court pointed out that “the role
of the advocate ‘requires that he support his client’s appeal to the best of his
ability,’” by exercising “reasonable professional judgments.” Id. at 753-54. The
petitioner’s appellate counsel made a judgment that the petitioner’s claim of
ineffective assistance of trial counsel was not viable, and the petitioner has not
demonstrated that his “appellate counsel failed to raise an issue that was both

16

obvious and clearly stronger than the issues he did raise.” Smith, 598 F.3d at
386 (internal quotation marks and citation omitted).
In his February 2015 status report, the petitioner stated that he has “a
right to effective assistance of counsel of his first appeal, but the petitioner is
being denied his 6th Amendment right to appellate counsel.” Dkt. No. 21 at 56. He argued that he did not “knowingly [or] intentionally omit the claim from
[his] prior postconviction motion.” Id. at 6 (quotation marks omitted). He also
argued that he did not “have the skills of a[] professional attorney or have the
ability to do research and raise the right issue on direct appeal.” Id. (citations
omitted). It is not clear to the court whether, by these statements, he is
attempting to support an ineffective assistance claim, or somehow argue that
the fact that he ended up representing himself constituted ineffective
assistance. If so, such an argument is both meritless and frivolous. The
petitioner did have appellate counsel in his direct appeal. That counsel did file
a no-merit notice of appeal, and the petitioner could have had counsel proceed
with a no-merit brief. The court did not refuse to give the petitioner his
constitutionally-mandated lawyer; rather, the petitioner disagreed with that
lawyer, and chose to go it on his own. In making that choice, he chose to
proceed without the assistance of a “professional attorney” who would have
had “the ability to do research and raise the right issue on direct appeal.”2
With regard to any argument the petitioner seeks to make regarding errors in
his post-conviction motions, the court notes that the Supreme Court and lower
courts have repeatedly held that “there is no constitutional right to an attorney
in state postconviction proceedings.” Coleman v. Thompson, 501 U.S. 722, 725
(1991) (internal citations omitted).
2

17

The court finds the petitioner’s Sixth Amendment claim against his
appellate counsel to be without merit.
B.

Prosecutorial Misconduct
1.

The petitioner cannot demonstrate that the prosecutor
intentionally infected his trial with unfairness or that the
prosecutor intentionally prejudiced his defense.

The second issue the petitioner raised in his petition and status report is
his argument that the state prosecutor’s failure to correct witnesses’ false and
contradictory testimony was misconduct that violated due process. “A
prosecutor’s misconduct must have ‘so infected the trial with unfairness as to
make the resulting conviction a denial of due process.’” Wilmington v. Sternes,
108 F. App’x 405, 408 (7th Cir. 2004) (quoting Darden v. Wainright, 477 U.S.
168, 181 (1986)). “Inflammatory, prejudicial statements . . . elicited by . . . a
state prosecutor, evidencing a desire to improperly prejudice the defendant,
may be serious enough to warrant federal habeas corpus relief.” Rose v.
Duckworth, 769 F.2d 402, 405 (7th Cir. 1985) (citation omitted). “In order to
rise to the level of constitutional error, prosecutorial misconduct that does not
implicate a specific provision of the Bill of Rights must have been so egregious
that it deprived the defendant of a fair trial, thus making the resulting
conviction a denial of due process.” Id. (internal quotation marks and citation
omitted). In order to evaluate the extent and “effect of prosecutorial
misconduct, the reviewing court must consider the erroneous acts in the
context of the entire trial, and each case must be determined on its own facts.”
Id. (citation omitted).
18

The Seventh Circuit has provided four factors for courts to consider when
faced with “situations where . . . prosecutorial behavior raises questions about
the overall fairness of the proceeding.” Id. Those are:
1. Were the . . . actions of the prosecutor intended to reflect
unfairly on the defendant’s guilt or innocence or were they so
prejudicial or inflammatory that they would ‘naturally and
necessarily’ imply that the defendant was guilty of the crime
charged;
2. Were the . . . actions isolated or extensive;
3. Was the evidence of guilt otherwise overwhelming; and
4. What curative instructions were given, and when?
Id. (quoting Hearn v. Mintzes, 708 F.2d 1072, 1077 (6th Cir. 1983)). The intent
of the prosecutor is a “critical” element “in determining the appropriateness of
habeas corpus relief.” Id. The district court does “not have broad supervisory
powers over state courts or their officers,” but “intentional injection of
unfairness by a prosecutor indicates that individual’s state of mind and degree
of concern for the rights of the defendant and . . . reflects on the likelihood that
other instances of unfairness . . . occurred.” Id. (citations omitted).
To determine the prosecutor’s intent, the reviewing federal court must
make “inferences from objective facts and circumstances,” but the reviewing
court must give the state court’s “[f]indings of fact . . . a presumption of
correctness.” Id. (citing Oregon v. Kennedy, 456 U.S. 667, 675 (1982); Sumner
v. Mata, 449 U.S. 539, 543-47 (1981); 28 U.S.C. §2254(d)). If the reviewing
court finds that the prosecutor’s actions were “serious,” the court then must
“assess the effect that that misconduct reasonably had on the jury’s verdict in
19

order to determine if the petition for habeas corpus should be granted.” Id. at
407.
On January 31, 2012, the Wisconsin Court of Appeals held that the
petitioner’s “claim that officers committed perjury based on minor
inconsistencies in their testimony is frivolous.” Dkt. No. 14-6 at 3. According to
the court, “[T]he trial court correctly rejected Marshall’s claim that the State
engaged in prosecutorial misconduct,” because the “allegedly inconsistent
testimony did not qualify as perjury.” Id. at 4. “The inconsistencies . . . [did] not
show that the officers did not believe in the truth of their testimony.” Id.
As an initial matter, this court cannot find, based on its review of the
petitioner’s various pleadings in this federal case, that the prosecutor at his
trial failed to correct false testimony. As the court found above, the
“inconsistencies” the petitioner specifically identifies in his pleadings are
minor—to the point where several of them do not appear to be
“inconsistencies.” The court would hazard a guess that in the majority of trials
that take place in state and federal courts across the country each day, there is
some witness testimony that is “inconsistent.” People word things differently
from one day to the next. Long stretches of time pass between the time a
witness gives one statement and the time he or she testifies at trial. Lawyers
ask questions differently at different hearings or interviews. Memories fade. The
mere existence of “inconsistencies” does not mean that the witness is lying, or
presenting false testimony. It is the job of defense counsel to seize upon and
point up material, serious inconsistencies, and the job of the prosecutor to
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point out when any inconsistencies are minor, immaterial or accidental. That is
how the adversarial system functions.
Even if the prosecutor noticed some inconsistencies in the testimony of
the State’s witnesses, the petitioner has provided no proof that the prosecutor
knew, or had reason to believe, that the witnesses were lying, or presenting
false testimony. While the petitioner points to the prosecutor’s failure to
“correct” the witnesses’ allegedly false statements, he has not presented any
evidence that the statements were purposefully “elicited by” the prosecutor,
that the statements were “inflammatory,” or that the prosecutor acted with “a
desire to improperly prejudice the defendant.” Rose, 769 F.2d at 405. The
circuit court and the court of appeals determined that the witnesses’
statements were not “so egregious” that they “deprived” the petitioner “of a fair
trial,” id., and the petitioner has provided no evidence to contradict that
finding. The petitioner has not demonstrated that the prosecutor “intended to
reflect unfairly on the defendant’s guilt . . . ” or that the statements “naturally .
. . impl[ied] that the defendant was guilty.” Id. (internal quotation marks and
citations omitted). Nor has he provided any evidence that the prosecutor
“intentional[ly] inject[ed] . . . unfairness” into the trial. Id. (citations omitted).
The petitioner has not demonstrated prosecutorial misconduct, and thus the
court finds that his Fourteenth Amendment due process claim is without merit.
VIII. CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing §2254 Cases provides that a district
court must issue or deny a certificate of appealability when it enters “a final
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order adverse to the applicant.” A certificate of appealability “may be issued
only if the prisoner has at least one substantial constitutional question for
appeal.” 28 U.S.C. §2253(c)(2). Because the petitioner has not made a
substantial showing of the denial of a constitutional right, the court will not
issue a certificate of appealability.
CONCLUSION
The court DENIES the petitioner’s January 30, 2013 habeas corpus
petition, and ORDERS that the petition is DISMISSED, effective immediately.
The court further ORDERS that it will not issue a certificate of appealability.
Dated in Milwaukee, Wisconsin this 4th day of January, 2016.

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