Holifield v. Kemper et al

Filing 43

REPORT AND RECOMMENDATIONS signed by Magistrate Judge William E Duffin on 5/31/2018. IT IS THEREFORE RECOMMENDED that Holifield's petition for a writ of habeas corpus be denied. IT IS FURTHER RECOMMENDED that the court deny Holifield a certificate of appealability. Case no longer referred to Magistrate Judge William E Duffin. (cc: all counsel, petitioner via USPS)(mlm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
AL HOLIFIELD,
Petitioner,
v.

Case No. 14-CV-1486

GARY MITCHELL, 1
Respondent.
REPORT AND RECOMMENDATION
I.

Procedural History
Al Holifield is incarcerated pursuant to a judgment of the Milwaukee County

Circuit Court. Following a jury trial Holifield was convicted of three counts of
manufacture or delivery of heroin, one count of possession of heroin, and maintaining a
drug trafficking place, all felonies. (ECF No. 12-2 at 2 (all numbering reflects the ECF
pagination).) He was also convicted of possession of THC and possession of a
controlled substance, both misdemeanors. (ECF No. 12-2 at 5.) After unsuccessfully

Holifield is incarcerated at the Marshall E. Sherrer Correctional Center. (ECF No. 40.) The
superintendent of that institution is Gary Mitchell, https://doc.wi.gov/Pages/OffenderInformation/
AdultInstitutions/MarshallESherrerCorrectionalCenter.aspx (last visited May 30, 2018). Therefore, in
accordance with Rule 2(a) of the Rules Governing Section 2254 Cases and Fed. R. Civ. P. 25(d), the caption
is updated accordingly.

1

appealing his convictions Holifield filed a petition for a writ of habeas corpus in this
district. (ECF No. 1.) The Honorable Pamela Pepper recently referred Holifield’s
petition to this court for the issuance of a report and recommendation as to its
resolution. (ECF No. 42.)
The respondent opposes the petition. (ECF No. 23.) In doing so, he submitted a
30-page single-spaced brief, with 89 footnotes, in opposition. The court’s Local Rules
require that the text of all briefs be double-spaced. Gen. L. R. 5(a)(5) (E.D. Wis.). In
Judge Griesbach’s Rule 4 order (ECF No. 6), citing Civil L.R. 7(f), he reminded the
parties that their opening briefs were not to exceed thirty pages. Ironically, in his noncompliant brief counsel for the respondent criticizes Holifield for submitting a two-part
brief that also exceeded the 30-page limit despite being similarly single-spaced. (See ECF
No. 23 at 2, fn.2.) Ordinarily, courts will strike such non-compliant briefs and order the
parties to submit briefs that comply with the local rules. Some judges may impose
sanctions if the non-compliance appeared intentional. However, given the posture of
this case, the court will not take any action here. The court raises the issue only as a
warning that a failure to follow the local rules and the court’s explicit orders regarding
the length and format of brief may have consequences.
II.

Standard of Review
A federal court may consider habeas relief for a petitioner in state custody “only

on the ground that he is in custody in violation of the Constitution or laws or treaties of

2

the United States.” 28 U.S.C. §2254(a). Following the passage of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), a federal court generally may grant
habeas relief only if the state court decision was “either (1) ‘contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,’ or (2) ‘based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.’” Miller v.
Smith, 765 F.3d 754, 759-60 (7th Cir. 2014) (quoting 28 U.S.C. § 2254(d)(1), (2)).
III.

Analysis
In his Rule 4 order Judge Griesbach identified ten claims in Holifield’s habeas

petition. Several of them allege that Holifield’s trial counsel was ineffective in one way
or another. To prevail on such a claim a petitioner must show both that his attorney’s
performance was deficient and that he was prejudiced as a result. Perrone v. United
States, No. 16-2437, 2018 U.S. App. LEXIS 12465, at *22 (7th Cir. May 14, 2018) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). “On the performance prong, he ‘must
overcome the strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.’” Id. (quoting Wyatt v. United States, 574 F.3d 455, 458
(7th Cir. 2009) (internal quotation marks omitted)). “On the prejudice prong, he must
show that ‘but for counsel’s errors, there is a reasonable probability that the result
would have been different.’” Id. (quoting United States v. Graf, 827 F.3d 581, 584 (7th Cir.
2016)). “As with the first prong, there is a presumption that the petitioner has not

3

suffered prejudice.” Id. (citing Graf, 827 F.3d at 584-85). Thus, the court’s review of an
ineffective assistance of counsel claim is “doubly deferential” when presented in a
petition for a writ of habeas corpus. Washington v. Boughton, 884 F.3d 692, 701 (7th Cir.
2018) (quoting Hinesley v. Knight, 837 F.3d 721, 732 (7th Cir. 2016)).
A. Search Warrant
On September 1, 2010, Investigator Jon Rivamonte of the Milwaukee Metro Drug
Enforcement Group applied for a search warrant for a single-family house in the city of
Milwaukee. Rivamonte submitted a seven-page affidavit in support of the request for a
search warrant. According to the affidavit, Rivamonte worked with a confidential
informant, who completed three drug purchases from Holifield—on August 11, August
16 and August 31, 2010. The affidavit stated that to arrange each sale, the confidential
informant called Holifield in Rivamonte’s presence and arranged to meet at a particular
McDonald’s restaurant.
Holifield alleges the search warrant was unlawful for a variety of reasons:
because it was based on unsworn statements of an informant, because it was dated
August 31, 2010 even though the affidavit was dated September 1, 2010, and because
another officer involved in the investigation administered the oath in connection with
the affidavit. (ECF No. 1 at 6-7.) He also alleges that the affidavit contained false and
misleading information as to Holifield’s residence and who owned that property. (ECF

4

No. 1-1 at 1.) Holifield alleges that his attorney was ineffective because she failed to file
a motion to suppress evidence obtained pursuant to the warrant.
The court has independently reviewed the search warrant (ECF No. 2-1 at 35-41)
and finds that, even accepting as true Holifield’s arguments as to alleged errors and
misleading information, the affidavit nonetheless established probable cause to search
the target residence. Cf. Franks v. Delaware, 438 U.S. 154, 156 (1978). As such, a motion to
suppress would have been unsuccessful. Consequently, because it was neither
unreasonable nor prejudicial for counsel to forego the motion, Holifield’s attorney was
not ineffective for not filing such a motion. See Strickland, 466 U.S. at 691-92.
The investigation involved three controlled buys of heroin. The same suspected
seller (identified in the warrant as Holifield, but for present purposes the court will
accept Holifield’s argument that investigators had not adequately identified Holifield at
that time) was observed by law enforcement as being involved in each sale.
Immediately following the second controlled buy, the suspected seller went to the
residence that the officers sought a warrant to search. Immediately before the third
controlled buy, the suspected seller went to the target residence, entered the house
briefly, and then drove to the meeting with the informant, where he exchanged heroin
for cash. These observations were consistent with the suspected seller using the target
residence to store controlled substances and the proceeds of their sale.

5

Holifield points to numerous alleged deficiencies in the search warrant (ECF No.
14-1 at 2-8), but all are inconsequential. For example, it was not necessary for the
affidavit to establish that Holifield had control over the residence in order for officers to
obtain a warrant to search it. In any event, as the affidavit recounts, Holifield identified
the home as his residence at the time of at least one prior arrest and in Wisconsin
Department of Transportation records. Moreover, it was the address listed on the
criminal complaint (ECF No. 2-1 at 69), and at his initial appearance Holifield stated,
through counsel, “His address is the same one as the one listed in the criminal
complaint …” (ECF No. 12-3 at 324).
Nor was it necessary for the affidavit to state, as Holifield says it should have,
that Holifield was observed to “leave directly from the residence and then return
directly back home like in other controlled buys cases.” (ECF No. 14-1 at 2.) Probable
cause may be supported by reasonable inferences. Although officers could have
recorded the controlled buys or done a traffic stop to identify the persons in the vehicle,
they were not required to do so.
Nor did the affidavit omit anything essential with respect to the informant.
Given the nature of the informant’s involvement, it was unnecessary for Rivamonte to
establish at length the reliability of the informant or show that the informant had
known Holifield before the controlled buys. The investigators were not simply relying
on the word of an informant as, for example, when officers seek a warrant to search a

6

home based solely on an informant telling them that he saw contraband there. Rather,
the information from the informant was independently corroborated by the officers’
monitoring of the calls and their observations of the controlled buys. The fact that the
informant did not personally know Holifield (but rather contacted him only because he
was given Holifield’s number from a friend) did not undermine probable cause. And an
informant is not required to appear before the issuing court commissioner or offer
sworn testimony in support of the warrant.
Even if the informant’s identification of Holifield was suspect, law enforcement
apparently

independently

observed

and

identified

Holifield.

Moreover,

law

enforcement were aided by other facts, including that Holifield had identified the target
residence as his residence on Department of Transportation records and previously to
law enforcement. “[I]n the case of drug dealers, evidence is likely to be found where the
dealers live.” United States v. Sewell, 780 F.3d 839, 846 (7th Cir. 2015) (quoting United
States v. Kelly, 772 F.3d 1072, 1080 (7th Cir. 2014) (emphasis omitted)).
Finally, Holifield had an extensive arrest history, including numerous arrests
related to drugs.
Taken together, these facts added up to probable cause to search the target
residence for evidence of drug dealing.
It is true that the search warrant contains an obvious error regarding the date. At
the bottom of the warrant, handwritten is “11:03 AM” followed by the typed date of

7

“August 31st, 2010,” suggesting that that was the date and time the court commissioner
signed the warrant. (ECF No. 2-1 at 34.) However, at the top of warrant “09/1/2010” is
typed as the date. (ECF No. 2-1 at 34.) And the jurat of the affidavit states, “Subscribed
and sworn to before me this 1st day of September, 2010.” (ECF No. 2-1 at 41.) Holifield
contends that this shows that the warrant was signed a day before the affidavit and
necessarily was unsupported by the facts alleged in the affidavit.
Of course, the more logical conclusion is that the date typed in at the bottom of
the search warrant (August 31st, 2010) was typed in the day before the warrant was
signed by the court commissioner, while the date at the top of that warrant and on the
affidavit were correct. In support of his argument Holifield points to the fact that
Rivamonte answered affirmatively when asked at trial if he applied for the search
warrant on the same day as the last controlled buy, i.e., on August 31, 2010. (ECF No. 125 at 279.) But the fact that he prepared the application for the search warrant on August
31, 2010, does not mean that that was the date on which the warrant was actually
signed. Indeed, Rivamonte’s testimony actually helps explain the discrepancy in dates-he applied for the warrant on August 31, 2010, which is why the warrant states that
date. For whatever reason the warrant and affidavit were not signed until the following
day and no one updated the one reference to the August 31st date.
The court of appeals characterized the date discrepancy as a technical
irregularity that did not merit suppression. (ECF No. 2-1 at 19, ¶ 17 (quoting Wis. Stat.

8

§ 968.22)); see also Hudson v. Michigan, 547 U.S. 586, 591 (2006). Such a conclusion is
logical and reasonable; the alternative would require the extraordinary leap that the
court commissioner wholly abandoned his judicial role and approved a search of a
home without even a proffer of a factual basis. Holifield offers nothing to support this
conclusion other than the mere fact of two dates.
Finally, Holifield takes issue with the fact that the notary for the affidavit was a
law enforcement officer involved in the investigation. The court finds no problem with
this. The judicial officer issuing the warrant must be neutral and detached. See Shadwick
v. Tampa, 407 U.S. 345, 350 (1972); Johnson v. United States, 333 U.S. 10, 14 (1948). Here,
that was the court commissioner. See Wis. Stat. § 757.69(1)(b). The notary does not issue
the warrant, see, generally, Wis. Stat. § 968.12, but merely administers the oath to the
affiant, thereby subjecting the affiant to perjury should his statements be untrue, see
Wis. Stat. § 137.01(5). Because in this context the notary has no role that requires
neutrality, there is nothing improper about the notary being an officer involved in the
investigation. The primary case upon which Holifield relies, People ex rel. Gilarmini v.
Elrod, 59 Ill. App. 3d 258, 260, 17 Ill. Dec. 160, 162, 376 N.E.2d 53, 55 (1978), is not
binding on this court, is inapplicable to a habeas proceeding, and is distinguishable.
Gilarmini dealt with a question of procedure under 18 U.S.C. § 3182 regarding the
issuance of a rendition warrant whereby an “affidavit made before a magistrate” was

9

required. Id. The court held that a state notary was not a “magistrate” within the scope
of the federal statute. Id.
Other cases cited by Holifield, to the extent the court can discern any relevance,
are similarly unhelpful. For example, in Coolidge v. New Hampshire, 403 U.S. 443, 447
(1971), the Court found defective a warrant issued by an Attorney General acting as a
justice of the peace. That case is distinguishable because, again, here the investigating
officer did not issue the warrant; the neutral and detached commissioner did.
In short, the court finds that any motion to suppress would have been
unsuccessful. Therefore, it was neither unreasonable nor prejudicial for Holifield’s
attorney to forego a motion to suppress.
B. Personal Jurisdiction
Citing Wis. Stat. §§ 801.02 and 801.09, Holifield argues that the circuit court never
obtained personal jurisdiction over him because certain documents were never filed
with the Clerk of Court and the search warrant was not returned within 48 hours. (ECF
No. 14-1 at 10.) But these statutes are rules of civil procedure, inapplicable to a criminal
proceeding. The court finds no merit to this argument. At best, any failure to follow
procedural requirements regarding the timing of filing of certain documents or the
return of a search warrant was a harmless technical error.

10

C. Riverside
Following a warrantless arrest, a person generally may be detained for no more
than 48-hours unless a judicial officer finds the arrest was supported by probable cause.
Cty. of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). Holifield contends that no such
timely probable cause determination was made in his case. As a result, he says that his
lawyer was ineffective for failing to seek relief under Riverside. (ECF No. 1 at 8.)
However, the record includes a standard Wisconsin Circuit Court “Probable
Cause Statement and Judicial Determination” form (CR-215) indicating that at 3:15 PM
on September 3, 2010, a court commissioner found probable cause for Holifield’s arrest,
well within 48 hours of Holifield’s arrest at 5:30 AM on September 2, 2010. (ECF No. 122 at 314-15.) Holifield contends this document was actually signed at some point after
his September 6, 2010 initial appearance and backdated to make it appear as though
there was a timely probable cause finding. He believes there was a second, now lost,
CR-215 that was presented at his initial appearance. He then speculates that this
allegedly missing CR-215 might have reflected an untimely probable cause finding.
The only support Holifield offers for his theory of a second CR-215 is an isolated
statement during his initial appearance. He alleges that the prosecutor stated at his
September 6, 2010 initial appearance that Holifield’s bail was set at $5,000 (ECF No. 2 at
7) even though the CR-215 in the record reflects that bail was set at $10,000.

11

But Holifield’s argument depends in part upon a misrepresentation of the record.
It is unclear from the transcript of the initial appearance who, if anyone, reported that
Holifield’s bail had been set at $5,000. The record includes the following from the
commissioner: “What’s his bail presently set at on his CR-215? Five? That’s all? Really?
He’s lucky he didn't have me set his bail on this.” (ECF No. 12-5 at 5.) The record does
not identify who answered the commissioner’s question, or if the commissioner
answered it himself upon finding the answer in the record. Even if the court were to
take the significant leap and conclude that this passage supports a conclusion that a
second CR-215 existed, it would not help Holifield because it would not show that the
missing CR-215 reflected an untimely probable cause determination or that the one in
the record was post-dated.
But speculation as to the veracity of any CR-215, or when a judicial officer found
probable cause, is immaterial. Even if Holifield could prove that the state failed to
comply with Riverside’s 48-hour rule, he would not be entitled to relief. Holifield would
not have been entitled to a dismissal of the charges against him simply by virtue of a
Riverside violation. See Powell v. Nevada, 511 U.S. 79, 84 (1994). There is no indication that
any improper delay led to additional evidence against Holifield. For example, it does
not appear Holifield made an incriminating statement after the expiration of the 48hours. Cf. Shallcross v. Pollard, No. 15-CV-1136-JPS, 2016 U.S. Dist. LEXIS 143394, at *29
(E.D. Wis. Oct. 17, 2016).

12

In sum, Holifield is not entitled to habeas relief based on an alleged Riverside
violation.
D. Identification
Holifield argues that a photographic identification procedure was unduly
suggestive because the informant identified him by way of a single photograph. (ECF
No. 1 at 9.) The court of appeals concluded that Holifield waived this argument by not
presenting it in the circuit court and that, by failing to respond to the state’s argument
that any challenge to the use of the single photograph would have failed even if not
waived, Holifield conceded this point. (ECF No. 2-1 at 23, ¶ 26.)
As noted by the court of appeals, Holifield waived this argument by not
presenting it in the circuit court. He cannot revive it now. Consequently, he has
procedurally defaulted this claim. To the extent Holifield seeks to evade waiver by
recasting the identification claims through the lens of ineffective assistance of counsel,
Holifield again procedurally defaulted this claim by conceding (by failing to address
the issue in reply) that a motion would have failed if filed.
Even if the court were to look past these defaults and consider the merits of the
claim, the court would nonetheless conclude that Holifield is not entitled to relief. Even
if the photographic identification procedure was found to be unduly suggestive, the
state court could reasonably find under the totality of the circumstances that the
identification was nonetheless “sufficiently reliable to prevent misidentification,” see

13

Gregory-Bey v. Hanks, 332 F.3d 1036, 1045 (7th Cir. 2003) (citing United States v. Traeger,
289 F.3d 461, 473-74 (7th Cir. 2002); United States v. Harris, 281 F.3d 667, 670 (2002)).
Contrary to what Holifield says, the informant testified that he and Holifield were not
strangers before the first controlled buy. The informant testified that he previously had
gone with a friend to purchase heroin from Holifield. (ECF No. 12-5 at 210, 212.) In each
controlled buy the informant reportedly engaged in small talk with Holifield in
encounters lasting a minute or two. (ECF No. 12-5 at 192, 199, 208.) The informant also
knew Holifield’s first name and knew he lived in the area of where the controlled buys
occurred. (ECF No. 12-5 at 213.) Thus, this was not a situation where a witness was
asked to identify a stranger after an isolated, high-stress encounter. See, e.g., Stovall v.
Denno, 388 U.S. 293, 295 (1967); Perry v. New Hampshire, 565 U.S. 228, 244 (2012); United
States v. Russell, 532 F.2d 1063, 1066 (6th Cir. 1976) (“There is a great potential for
misidentification when a witness identifies a stranger based solely upon a single brief
observation, and this risk is increased when the observation was made at a time of stress
or excitement.”).
E. Informant’s Immunity
Holifield alleges that the informant received immunity but his attorney failed to
investigate it. (ECF No. 1-1 at 3.) Specifically, he contends that the informant received “a
deal on a forgery case that he had pending at the time of trial.” (ECF No. 14-1 at 18.) He
contends that matter was resolved by way of a deferred prosecution agreement, and

14

notes that the informant’s attorney was present during his testimony against Holifield.
(ECF No. 14-1 at 18.) In support he points to Burgin v. Broglin, 900 F.2d 990, 992 (7th Cir.
1990), a case in which a witness testified that she had not been promised anything in
exchange for her testimony but, following her testimony, her pending charges were
reduced and she received a suspended prison sentence. Holifield asserts, “The court
reversed the case based on a due process violation.” (ECF No. 14-1 at 19.) Holifield
argues that the trial court erred by limiting Holifield’s cross-examination of the
informant regarding what consideration the informant might be receiving for his
testimony (ECF No. 1-1 at 3) and that his attorney was ineffective for failing to elicit the
fact that the informant’s attorney was present in court during the informant’s
testimony. (ECF No. 1-1 at 3-4.)
Holifield is correct that the court of appeals in Burgin reversed the district court,
but incorrect on what that reversal meant. Although the court of appeals reversed the
district court’s grant of habeas relief to the petitioner, it did not assess the merits of the
petitioner’s due process claim. Instead, it found that the petitioner had not properly
presented to the state court the issue of whether the witness was testifying in exchange
for benefits in her own case. Thus, Burgin is of no help to Holifield. To the extent it is
relevant at all, it is distinguishable because Burgin supported his assertion of a preexisting deal through the testimony of a witness who reported hearing the witness, her
attorney, and the prosecutor discussing the deal before her testimony. Holifield offers

15

nothing more than the fact that the informant subsequently received a favorable
outcome.
The Wisconsin Court of Appeals rejected Holifield’s argument that the informant
testified in exchange for favorable treatment in his case, noting not only that Holifiled
offers “mere assertions of facts not in the Record” in an attempt to support it but that
the assertions are actually “contradicted by the Record.” (ECF No. 2-1 at 21, ¶ 21.) The
informant and the investigator both testified that the informant was not promised
anything in exchange for his testimony. (ECF No. 2-1 at 21, ¶ 21.) Therefore, “[t]here is
no merit to Holifield's ineffective assistance claim.” (ECF No. 2-1 at 21, ¶ 21.)
The court finds that the court of appeals’ conclusion was reasonable. Therefore,
Holifield is not entitled to relief on this basis. The fact that the informant’s pending
criminal charges were resolved in a manner favorable to him does not prove that his
testimony was the product of any promises of leniency. Rather, in the court’s
experience, the outcome is quite common, especially in specialty courts like the drug
treatment court that was handling the pending charges against the informant. (ECF No.
12-5 at 168.) Significantly, the assistant district attorney prosecuting Holifield explicitly
informed the court that he had no involvement in the informant’s forgery case and had
had no discussions with the prosecutor handling that case. (ECF No. 12-5 at 168-69.)
There is no hint that Holifield’s lawyer reasonably should have done anything more,

16

much less that doing anything further would have benefitted Holifield. And it was
immaterial that the informant’s attorney was present during the informant’s testimony.
Therefore, no basis exists for concluding that Holifield was denied the effective
assistance of counsel as a result of his lawyer failing to further investigate any immunity
supposedly provided to the informant or for not pointing out to the jury that the
informant’s lawyer was present during his testimony.
F. Informant’s Statements
Holifield alleges that the state withheld exculpatory evidence—specifically,
audio or written statements of the informant. (ECF No. 1-1 at 4.) However, he has not
shown that any such statements exist; he simply speculates that such recorded
statements should exist. (ECF No. 14-1 at 21-22.) He “requests an evidentiary hearing to
determine the whereabouts of the statements.” (ECF Nos. 2 at 12; 14-1 at 23.) But
without more than his own speculation that statements exist, the court finds no basis for
a hearing. The court finds that Holifield is not entitled to habeas relief on this basis.
G. Identification of Natasha Davis
Holifield asserts that officers falsely identified Natasha Davis, his girlfriend, as
being present during a controlled buy, and that he had evidence that she was actually
working in Michigan at the time. (ECF No. 1-1 at 5.) The court refused to let Holifield
present the evidence. (ECF No. 1-1 at 5.) Holifield argues that his lawyer was ineffective
for not doing more to get this evidence before the jury. (ECF No. 1-1 at 6.) He also

17

argues that counsel failed to contact the witnesses necessary to corroborate that Davis
was working out of state at the relevant time. (ECF No. 14-1 at 25.)
The evidence that Holifield sought to introduce to demonstrate that Davis could
not have been where the state said she was at the time of the subject controlled buy
included, most relevantly, a handwritten receipt dated August 21, 2010, identified as
being from “Gold Nugget” to “Luscious” for “Dancing.” (ECF No. 12-3 at 162; see also
ECF No. 12-4 at 208 (letter from Raissa Clarkson stating she is “writing to verify that
Natash [sic] Davis (Luscious) was working for me 8/30/10 9/3/10[.]”)) Holifield’s
attorney argued for the admission of this evidence. (ECF No. 12-5 at 532-42.) But, in
exercising its discretion, the court concluded that the purported business records were
hearsay and that he was “not going to have a trial within a trial” on the question of
whether Davis was misidentified as being present at one of the controlled buys. (ECF
No. 12-5 at 541, 543.) The court, however, did allow Davis to testify that she was
working out of state at the time of the subject controlled buy. (ECF No. 12-5 at 544.)
Contrary to Holifield’s contention, in arguing for the admission of the documents
regarding Davis’s whereabouts at the time of the subject controlled buy, Holifield’s
attorney did more than just rely on the handwritten receipts. She stated in conjunction
with her argument regarding the admissibility of the receipts:
I’ve been trying for about ten days to get somebody from the Golden
Nugget to call me back so I can get something that more resembles a
business record and I have not been able to get a hold of anybody, but Mr.
Holifield has just told me that he has a personal cell phone number for the
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individual named Classy and it's --I guess it is possible that I could try to
reach this person and this person could fax me something tonight which I
could have for the Court tomorrow.
(ECF No. 12-5 at 542.) Counsel’s efforts were reasonable, as was the court’s ruling. The
alleged misidentification of Davis was a minor and tangential issue that only in the
most minor sense plausibly supported Holifield’s defense. Permitting Davis to testify
that she was out-of-state, but precluding suspect evidence that purported to support her
testimony, was a reasonable evidentiary ruling that did not deprive Holifield of his
constitutional right to present a defense. The court finds no basis for habeas relief on
this claim.
H. Drug Analyst’s Report
Holifield contends that his lawyer was ineffective for stipulating that the state
could introduce the report of a drug analysist (that drugs found in the home were
heroin and cocaine) rather than insisting that the analyst testify and be subject to crossexamination. (ECF Nos. 1-1 at 6; 14-1 at 28-29.) Absent proof that the analyst’s report
was inaccurate and that the substances tested were not cocaine and heroin, Holifield has
failed to demonstrate that he was prejudiced by any alleged ineffectiveness on the part
of his lawyer.
I. Sufficiency of the Evidence
Holifield also contends that the evidence adduced at trial was insufficient to
sustain his conviction. (ECF No. 1-1 at 7.) The trial court and the court of appeals

19

rejected this argument, noting that the controlled substances were located in pants that
officers found at the base of the bed where Holifield has been sleeping. (ECF No. 2-1 at
20, ¶ 19.) Holifield denied the pants were his. But also found in the pants was the phone
the informant called to set up the most-recent controlled buy. Both the trial court and
the court of appeals concluded that this circumstantial evidence was sufficient to
sustain the jury’s verdict. (ECF No. 2-1 at 20, ¶ 19.) This court agrees.
Holifield also argues that the identification testimony was “false” and that,
without it, there was insufficient evidence to sustain his conviction. (ECF No. 14-1 at
29.) But, as discussed above, the evidence was properly admitted. The court finds
sufficient evidence existed to sustain his convictions.
J. Juvenile Record
Finally, Holifield argues that the trial court abused its discretion by considering
his juvenile record for sentencing purposes. (ECF No. 1-1 at 7.) Specifically, he contends,
“The United States Supreme Court has ruled that the defendant’s juvenile record may
not be used against him at his adult sentencing hearing, because it violates the
defendant’s Sixth Amendment right to counsel.” (ECF No. 14-1 at 29.)
Holifield does not support this assertion with a citation to any authority. Juvenile
offenses are routinely and appropriately considered for sentencing purposes. See, e.g.,
United States Sentencing Commission, Guidelines Manual, § 4A1.2(d). However,
relying on cases in which the Supreme Court held that adult convictions obtained in

20

violation of the right to counsel recognized in Gideon v. Wainwright, 372 U.S. 335 (1963)
cannot be used to enhance a subsequent sentence, the Wisconsin Supreme Court has
held that juvenile adjudications occurring before juveniles had a right to counsel in
juvenile proceedings may not be considered for sentencing purposes. Stockwell v. State,
59 Wis. 2d 21, 29-33, 207 N.W.2d 883, 887-89 (1973) (discussing Loper v. Beto, 405 U.S. 473
(1972); United States v. Tucker, 404 U.S. 443 (1972)); Moore v. State, 83 Wis. 2d 285, 308-09,
265 N.W.2d 540, 550 (1978); see also Majchszak v. Ralston, 454 F. Supp. 1137, 1141 n.1
(W.D. Wis. 1978).
But even this limited exception is of no help to Holifield. Juveniles have had a
right to counsel in juvenile proceedings since 1967. In re Gault, 387 U.S. 1 (1967).
Holifield was born in 1975. (ECF No. 12-3 at 144.) As a result, he had a right to counsel
in all of his juvenile proceedings. Holifield does not argue, much less present evidence
to support, that he was not represented by counsel with respect to any juvenile
adjudication relied upon by the court in sentencing.
Consequently, this argument does not entitle Holifield to habeas relief.
IV.

Conclusion
Having concluded that Holifield is not entitled to relief on any claim presented

in his petition, IT IS THEREFORE RECOMMENDED that Holifield’s petition for a
writ of habeas corpus be denied.

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IT IS FURTHER RECOMMENDED that the court deny Holifield a certificate of
appealability, Holifield having failed to make a substantial showing of the denial of a
constitutional right, see 28 U.S.C. § 2253(c)(2).
Your attention is directed to 28 U.S.C. § 636(b)(1)(A) and Fed. R. Civ. P. 72(a)
whereby written objections to any order herein or part thereof may be filed within
fourteen days of service of this order. Failure to file a timely objection with the district
court shall result in a waiver of a party’s right to appeal.
Dated at Milwaukee, Wisconsin this 31st day of May, 2018.

_________________________
WILLIAM E. DUFFIN
U.S. Magistrate Judge

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