Holifield v. Kemper et al

Filing 61

ORDER DENYING PETITION AND DISMISSING CASE signed by Magistrate Judge Stephen C Dries on 5-29-2020. (cc: all counsel)(Dries, Stephen)

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

Case No. 14-CV-1486-SCD

GARY MITCHELL,
Respondent.

DECISION AND ORDER DENYING
PETITION FOR WRIT OF HABEAS CORPUS

In 2011, Al Holifield was convicted of multiple drug offenses in Wisconsin state court.
After his state appeal was rejected, Holifield filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, alleging that he is in custody in violation of the United States
Constitution for at least ten different reasons. The respondent maintains that Holifield has not
satisfied his burden of proving that his claims merit relief under the deferential standards set
forth in § 2254. I agree. Because the state court’s decision denying most of his claims was not
objectively unreasonable and because the other claims are procedurally barred, Holifield is
not entitled to relief under § 2254. Thus, his petitioner will be denied, and this action will be
dismissed.

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BACKGROUND
I.

State-court proceedings
A. Search warrant
On September 1, 2010, Investigator Jon Rivamonte of the Milwaukee Metro Drug

Enforcement Group applied for a warrant to search a single-family house located at 1544 W.
Groeling Avenue in the city of Milwaukee. See ECF No. 12-2 at 238–44. Rivamonte
submitted a seven-page affidavit in support of the search-warrant application. According to
the affidavit, Rivamonte worked with a reliable confidential informant who purchased heroin
from Holifield on August 11, August 16, and August 31, 2010. The affidavit indicated that,
for each sale, the informant called Holifield in Rivamonte’s presence and arranged to meet at
a particular McDonald’s restaurant. Id. at 239. After the August 16 controlled buy, officers
followed Holifield’s car—an older model, blue Chevrolet Corsica—to the area of 1500 W.
Groeling Avenue. Id. at 239–40. Shortly thereafter, an officer saw Holifield standing on the
front porch of 1544 W. Groeling Avenue. Id. at 240. On August 31, officers observed Holifield
park in front of 1544 W. Groeling Avenue, exit the Corsica, and go into the residence. A few
minutes later, Holifield exited the residence and got into the driver’s seat of the Corsica; his
girlfriend, Natasha Davis, was sitting in the front passenger seat. Officers then observed
Holifield drive to the meet location where he sold heroin to the informant. The affidavit also
indicated that Holifield listed 1544 W. Groeling Avenue as his home address with the DOT
and that Holifield stated he lived at that residence when he was arrested in August 2009. Id.
at 242–43.
Based on the affidavit, a judicial court commissioner signed a no-knock search warrant
for 1544 W. Groeling Avenue. See ECF No. 12-2 at 237. The commissioner handwrote the
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time he signed the warrant (11:03 a.m.); the date already typed on the warrant was August
31st, 2010. Id. The commissioner ordered officers to return the warrant within forty-eight
hours. Id.
Officers executed the warrant in the early morning hours of September 2, 2010. See
ECF No. 12-2 at 298; see also ECF No. 12-4 at 76. They found Holifield and his cousin asleep
in a second-floor bedroom. On the floor at the foot of the bed Holifield was sleeping in, officers
found a pair of pants that contained cash, marijuana, heroin, one ecstasy pill, and a cell phone
that was assigned the same phone number that the informant used to contact Holifield to
arrange the August 31 controlled buy. See ECF No. 12-2 at 245, 298; see also ECF No. 12-4 at
76. During the search of the home, officers recovered nine bags of crack cocaine under an
armchair cushion by the front door, a bag of marijuana in the drawer under the kitchen table,
seven bags of cocaine, two digital scales, and approximately $30,000 in cash. See ECF No.
12-2 at 245, 299. Holifield, who was one of nine people in the house at the time the warrant
was executed, was placed under arrest around 5:30 a.m. See id. at 314; see also ECF No. 12-4
at 76. At 3:15 p.m. the following day, a judicial court commissioner signed a “Probable Cause
Statement and Judicial Determination” form (CR-215) indicating that there was probable
cause for Holifield’s arrest and setting his initial bail at $10,000. See ECF No. 12-2 at 314–15.
B. Circuit-court proceedings
On September 5, 2010, Holifield was charged in Milwaukee County Circuit Court with
three counts of delivering a controlled substance (heroin, three grams or less) for the August
11, August 16, and August 31 sales to the informant. See ECF No. 12-2 at 29–33. Based on
evidence recovered during the search of the house, Holifield was also charged with possession
of a controlled substance (heroin) and keeping a drug house as a party to a crime. Id. At
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Holifield’s initial appearance the following day, a judicial court commissioner found probable
cause for each of the five charges and set bail at $2,500. See ECF No. 12-5 at 2–7.
Holifield’s appointed lawyer did not file any pretrial motions, and the case proceeded
to trial. See ECF No. 12-2 at 17–20. On the eve of trial, the State filed an amended information
that added two misdemeanor charges: possession of THC and possession of a non-narcotic
controlled substance (MDMA). See id. at 43–45. At trial, the State presented detailed
testimony about the three controlled buys, including testimony from the informant,
Rivamonte, and the officers who conducted surveillance during the buys. See ECF No. 12-5
at 49–728. The State also presented evidence about what they found when they executed the
search warrant.
The defense’s theory was that the informant erroneously identified Holifield as the
man who sold him drugs and that the seller was somebody else, possibly Holifield’s brother.
See ECF No. 12-4 at 77. To support this theory, the defense presented testimony to refute the
informant’s claim that Holifield’s girlfriend, Natasha Davis, was in the car during the August
31 controlled buy. Davis testified that she was working in Michigan at that time, so she
couldn’t have been in the car with Holifield and the informant. See ECF No. 12-5 at 554–55.
The theory was that if the informant mistakenly identified Davis, then he could have also
mistakenly identified Holifield. See id. at 689. Holifield also testified in his own defense. See
id. at 574–634. He claimed that he never sold drugs to the informant, that the pants found
next to his bed were not his, and that he was not living at 1544 W. Groeling Avenue (his
grandparents’ house) during the summer of 2010. In her closing argument, defense counsel
focused on the mistaken-identity theory, which in her view, was set in motion when
Rivamonte showed the informant a single photograph of Holifield and asked if he was the

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guy selling drugs. See id. at 673–99. The jury found Hollifield guilty of all seven counts. See
ECF No. 12-2 at 128–34.
On August 1, 2011, Holifield was sentenced to four consecutive terms of one year of
initial confinement and one year of extended supervision for the three counts of delivering
heroin and the one count of possessing heroin. See ECF No. 12-2 at 230–34; see also ECF No.
12-5 at 732–67. The court imposed concurrent sentences of one year of initial confinement
and one year of extended supervision for maintaining a drug house; thirty days in the house
of correction for possession of THC; and ten days in the house of correction for possession of
a controlled substance. See id.
C. Post-conviction/appellate proceedings
After firing his post-conviction/appellate lawyer, Holifield filed a pro se postconviction motion seeking a new trial. See ECF No. 12-2 at 255–300. The trial court denied
the motion without a hearing. Id. at 303–12. Holifield appealed, filing a fifty-page brief that
raised seventeen main issues. See ECF No. 12-3 at 31–221. On July 2, 2013, the Wisconsin
Court of Appeals issued a decision affirming Holifield’s judgment of conviction and the order
denying his postconviction motion. See ECF No. 12-4 at 74–93; see also State v. Holifield,
Appeal No. 2012AP1194-CR, 2013 Wisc. App. LEXIS 555 (Wis. Ct. App. July 2, 2013).
Holifield sought review of the appellate court’s decision. See ECF No. 12-4 at 94–228. The
Wisconsin Supreme Court summarily denied his petition for review on November 26, 2013.
See id. at 232. He did not file a petition for certiorari in the United States Supreme Court. See
ECF No. 1 at 4.

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II.

Federal habeas proceedings
On November 25, 2014, Holifield filed a federal habeas petition presenting ten grounds

for relief. See ECF Nos. 1, 1-1. U.S. District Judge William C. Griesbach screened the petition
and allowed Holifield to proceed on all ten claims. See ECF No. 6. Thereafter, the matter was
reassigned to Chief Judge Pamela Pepper. After briefing was completed, see ECF Nos. 12, 14,
23, 24, Judge Pepper referred the matter to Magistrate Judge William E. Duffin for a report
and recommendation, see ECF No. 42. Judge Duffin recommended that the petition be denied
and that Holifield be denied a certificate of appealability. See ECF No. 43. On July 6, 2018,
Holifield filed a motion requesting an evidentiary hearing. See ECF No. 48. The matter was
reassigned to me in May 2020 after the parties consented to magistrate-judge jurisdiction
under 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73(b). See ECF Nos. 56, 59, 60. The Report and
Recommendation is therefore moot.
STANDARD OF REVIEW
Holifield’s petition is governed by the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA). Under AEDPA, a prisoner in custody pursuant to a state-court judgment
of conviction is entitled to federal habeas relief only if he is “in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). With respect to
claims adjudicated on the merits in state court, a federal court can grant an application for a
writ of habeas corpus “only if the state court’s decision was contrary to clearly established
Supreme Court precedent, involved an unreasonable application of such precedent, or was
based on an unreasonable determination of the facts in light of the evidence presented in state
court.” Promotor v. Pollard, 628 F.3d 878, 888 (7th Cir. 2010) (citing 28 U.S.C. § 2254(d)); see
also White v. Woodall, 134 S. Ct. 1697, 1702 (2014).
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“A legal principle is ‘clearly established’ within the meaning of [§ 2254(d)(1)] only
when it is embodied in a holding of [the Supreme Court].” Thaler v. Haynes, 559 U.S. 43, 47
(2010) (citing Carey v. Musladin, 549 U.S. 70, 74 (2006); Williams v. Taylor, 529 U.S. 362, 412
(2000)). A state-court decision is “contrary to” clearly established federal law if “the state
court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question
of law or if the state court decides a case differently than [the Supreme Court] has on a set of
materially indistinguishable facts.” Williams, 529 U.S. at 412–13 (opinion of O’Connor, J.).
Similarly, a state-court decision results in an “unreasonable application” of clearly
established federal law when that court either “identifies the correct governing legal rule from
[Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner’s
case” or “unreasonably extends a legal principle from [Supreme Court] precedent to a new
context where it should not apply or unreasonably refuses to extend that principle to a new
context where it should apply.” Id. at 407. A writ of habeas corpus may not issue under the
“unreasonable application” clause “simply because the federal court concludes that the state
court erred. Rather, the applicant must demonstrate that the state court applied the Supreme
Court’s precedent in an objectively unreasonable manner.” Kubsch v. Neal, 838 F.3d 845, 859
(7th Cir. 2016) (citing Woodford v. Visciotti, 537 U.S. 19, 24–25 (2002)). Thus, the petitioner
“must show that the state court’s ruling . . . was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Kubsch, 838 F.3d at 859 (quoting Harrington v. Richter, 562 U.S. 86,
103 (2011)).
“[A] state-court factual determination is not unreasonable merely because the federal
habeas court would have reached a different conclusion in the first instance.” Wood v. Allen,

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558 U.S. 290, 301 (2010). For purposes of federal habeas review, state-court factual
determinations are entitled to “substantial deference.” Brumfield v. Cain, 135 S. Ct. 2269, 2277
(2015). To obtain relief under § 2254(d)(2), a petitioner must demonstrate that the state-court
decision “rests upon fact-finding that ignores the clear and convincing weight of the
evidence.” McManus v. Neal, 779 F.3d 634, 649 (7th Cir. 2015) (quoting Goudy v. Basinger, 604
F.3d 394, 399 (7th Cir. 2010)); see also 28 U.S.C. § 2254(e)(1). “The decision must be ‘so
inadequately supported by the record as to be arbitrary and therefore objectively
unreasonable.’” Alston v. Smith, 840 F.3d 363, 370 (7th Cir. 2016) (quoting Ward v. Sternes,
334 F.3d 696, 704 (7th Cir. 2003)).
When applying the above standards, federal courts look to “the ‘last reasoned statecourt decision’ to decide the merits of the case, even if the state’s supreme court then denied
discretionary review.” Dassey v. Dittmann, 877 F.3d 297, 302 (7th Cir. 2017) (quoting Johnson
v. Williams, 568 U.S. 289, 297 n.1 (2013)).
ANALYSIS
Davis alleges ten grounds for relief in his habeas petition.
I.

Ineffective Assistance of Counsel: Search Warrant
Holifield alleges that his trial lawyer was ineffective for “failing to file a pre-trial

motion to have the evidence from the unlawful search warrant suppressed from the trial
court.” ECF No. 1 at 6.
Criminal defendants have a constitutional right “to the effective assistance of counsel.”
Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S.
759, 771 n.14 (1970)). To succeed on an ineffective-assistance-of-counsel claim, a habeas
petitioner “must show both that counsel’s representation fell below an objective standard of
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reasonableness, and that there exists a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Kimmelman v.
Morrison, 477 U.S. 365, 375 (1986) (citing Strickland, 466 U.S. at 688, 694). “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466
U.S. at 694. “[C]ourts need not address both prongs of Strickland” if the petitioner makes an
inadequate showing as to one. Atkins v. Zenk, 667 F.3d 939, 946 (7th Cir. 2012) (citing
Strickland, 466 U.S. at 697).
“Judicial scrutiny of counsel’s performance must be highly deferential.” Strickland, 466
U.S. at 689. On habeas review, “[t]he question ‘is not whether a federal court believes the
state court’s determination’ under the Strickland standard ‘was incorrect but whether that
determination was unreasonable—a substantially higher threshold.’” Knowles v. Mirzayance,
556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). Thus, when
a Strickland claim is evaluated under § 2254(d)(1), the standard of review is said to be “doubly
deferential.” See Mirzayance, 556 U.S. at 123 (citing Yarborough v. Gentry, 540 U.S. 1, 5–6
(2003) (per curiam)).
Holifield alleges that the warrant to search 1544 W. Groeling Avenue was defective
because it was signed the day before the affidavit was notarized and because another officer
involved in the investigation administered the oath in connection with the affidavit. ECF No.
1 at 7. He further alleges that the warrant lacked probable cause, contained false and
misleading statements, was “rubber stamped” by the court commissioner, and impermissibly
relied on unsworn statements from an informant. Id. at 6–7; ECF No. 1-1 at 1–2. Holifield
claims his trial lawyer was ineffective for failing to seek suppression on these grounds.

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The Wisconsin Court of Appeals determined that Holifield’s trial lawyer was not
deficient for failing to challenge the search warrant because a suppression motion would not
have been successful. See ECF No. 12-4 at 79–80, 82 (citing Strickland, 466 U.S. at 687).
Specifically, the court concluded that a search warrant signed by a court commissioner is valid
in Wisconsin, the supporting affidavit was constitutionally adequate, and the nonconforming
dates on the warrant and affidavit were a mere technical irregularity. See id.
The court of appeals reasonably applied Strickland to Holifield’s search-warrant claims.
First, the court reasonably determined that the warrant was not facially invalid. Wisconsin
law permits judicial court commissioners to sign search warrants. See Wis. Stat. § 757.69(1)(b)
(“A circuit court commissioner may . . . issue . . . search warrants.”). Moreover, the fact that
the affidavit was allegedly notarized by an officer involved in the investigation, see ECF No.
12-2 at 244, is not improper. A notary simply administers an oath to the affiant (here,
Rivamonte), thereby subjecting the affiant to criminal liability if his statements prove untrue.
See Wis. Stat. § 137.01(5). The notary did not sign the warrant. That was done by a judicial
court commissioner, and Holifield has not presented any evidence to suggest that the
commissioner here abandoned his detached and neutral role in authorizing the search. See
Shadwick v. Tampa, 407 U.S. 345, 350 (1972) (“[A]n issuing magistrate must meet two tests.
He must be neutral and detached, and he must be capable of determining whether probable
cause exists for the requested arrest or search.”).
Holifield is right about the dates: the affidavit indicates that it was notarized on
September 1, 2010, see ECF No. 12-2 at 244, while the warrant says it was signed on August
31, 2010, see id. at 237. By itself, however, this fact does not show that the commissioner
authorized the warrant without the affidavit. As the court of appeals reasonably inferred, the

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date mix-up was likely a technical irregularity—the August 31 date was probably typed on
the warrant the day before the court commissioner signed it. And suppression is not an
appropriate remedy for such errors. Holifield notes that Rivamonte testified he applied for the
warrant the same day as the third controlled buy (i.e., August 31). See ECF No. 12-5 at 279.
But that doesn’t mean the warrant was also signed on that day. Indeed, Rivamonte’s
testimony provides an explanation for the date discrepancy—he prepared the warrant
application on the 31st (which is why that date was pre-printed on the warrant) but, for
whatever reason, it wasn’t signed until the next day. Holifield has not presented any other
evidence to support his theory that the commissioner signed the warrant without any
supporting materials.
Second, the court of appeals reasonably determined that the warrant was
constitutionally adequate. The affidavit submitted in support of the search-warrant
application described three controlled buys of heroin from the same seller. Following the
second controlled buy, officers followed the seller and observed him on the porch of 1544 W.
Groeling Avenue. Similarly, officers observed the seller at that residence immediately prior
to the third controlled buy. These facts provided probable cause to believe that officers would
find contraband at the residence, regardless of whether the seller was Holifield or someone
else who used the residence for his drug dealing. See United States v. Peck, 317 F.3d 754, 756
(7th Cir. 2003) (“Probable cause is established when, based on the totality of the
circumstances, the affidavit sets forth sufficient evidence to induce a reasonably prudent
person to believe that a search will uncover evidence of a crime.”).
Holifield’s other attacks on the search warrant are unavailing. He contends the
affidavit didn’t sufficiently establish that he had control over the residence. But that fact was

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not crucial to the probable-cause finding. In any event, the affidavit did establish Holifield’s
connection to the residence: he identified the home as his residence in DOT records and at
the time of at least one prior arrest. See ECF No. 12-2 at 242–43. As the Seventh Circuit has
observed, “in 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)). Holifield also contends the affidavit should have stated that
officers observed the seller leave directly from the residence and return to the residence
immediately after each controlled buy or that officers should have stopped the suspect vehicle.
While such detail would have provided additional support for the warrant, its absence was
inconsequential. The affidavit provided sufficient factual information from which an issuing
judicial officer could reasonably infer that indicia of drug trafficking would be found at the
residence.
Furthermore, Holifield has not demonstrated any error with respect to the informant.
Rivamonte explained in the affidavit why he believed the informant was credible. See ECF
No. 12-2 at 241. Also, officers monitored the informant’s calls with the seller and conducted
surveillance during each controlled buy. Officers therefore independently corroborated the
key details provided by the informant. Further signs of reliability were not necessary in this
case. See United States v. Searcy, 664 F.3d 1119, 1122 (7th Cir. 2011) (explaining that probable
cause is analyzed based on “the totality of the circumstances” set forth in the affidavit). Nor
did the informant need to personally appear before the issuing court commissioner or offer
sworn testimony in support of the warrant. See Peck 317 F.3d at 756 (listing this as merely one
factor to consider in the analysis).

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Holifield’s final objection with respect to the warrant is that the false statements in the
affidavit entitled him to a Franks hearing. ECF No. 1-1 at 1–2. In his brief in support of his
petition, he argues that Rivamonte falsely stated he personally observed Holifield participate
in the first controlled buy but later testified at trial that no one was close enough to see the
drug deal. ECF No. 14-1 at 4. Holifield also argues that Rivamonte lied about the second
controlled buy because he said that “detective Zuberbier did a drive by of the residence
directly after the controlled buy and observed the petitioner standing on the front porch of the
residence.” Id. at 5. Finally, Holifield argues that the affidavit is misleading because
Rivamonte said the informant had bought drugs from Holifield at 1544 W. Groeling when
that information was not known by Rivamonte. Id.
I have reviewed the record, including the trial transcripts, and find no support for
Holifield’s arguments. He misrepresents the statements made in the affidavit supporting the
warrant and misstates the trial testimony. With respect to the first controlled buy, the affidavit
indicated that Rivamonte observed the informant enter the back seat of a station wagon
parked at the meet location and that Rivamonte could see Holifield in the front passenger seat
of the wagon and an unknown male in the driver seat. See ECF No. 12-2 at 239. This statement
was consistent with Rivamonte’s trial testimony. At trial, Rivamonte testified that he
positively identified Holifield sitting in the passenger seat of the station wagon, but he wasn’t
close enough to see the hand-to-hand transaction or which individual inside the wagon made
the sale. See No. 12-5 at 250–51, 305–06. As for the second controlled buy, the affidavit states
that Detective Zuberbier conducted a drive by at the residence on August 16, 2010, and saw
Holifield on the front porch. ECF No. 12-2 at 240. Zuberbier was called as a witness at trial,
but he was not asked about his observations on August 16, 2010. See ECF No. 12-5 at 342–

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53. Finally, contrary to Holifield’s assertions, the affidavit does not state that the informant
previously purchased drugs from Holifield. See ECF No. 12-2 at 238–44.
To the extent Holifield identifies other allegedly false or misleading statements in the
affidavit, see ECF No. 14-1 at 4–8, these errors do not merit habeas relief. A criminal
defendant is entitled to a Franks hearing to examine the sufficiency of a search warrant only
if he makes “a ‘substantial preliminary showing’ that the warrant application contained a
materially false statement made by law enforcement with deliberate or reckless disregard for
the truth and that the false statement was necessary for the finding of probable cause.” United
States v. Williams, 718 F.3d 644, 649 (7th Cir. 2013) (citing Franks v. Delaware, 438 U.S. 154,
155–56 (1978); United States v. McMurtrey, 704 F.3d 502, 504 (7th Cir. 2013)). The alleged
errors identified by Holifield are not critical to the probable-cause finding. In other words,
even accepting those errors as true, the affidavit still established probable cause to search the
target residence.
Overall, Holifield has failed to establish that any of his arguments would have been
successful had counsel filed a motion to suppress the evidence recovered from the residence.
Because it was neither unreasonable nor prejudicial for counsel not to file a suppression
motion, Holifield’s attorney was not ineffective. Holifield therefore has not met his burden of
demonstrating that he is entitled to relief under § 2254 on his search-warrant claim.
II.

Personal Jurisdiction
Holifield alleges that the state circuit court lacked personal jurisdiction over him

because “the criminal complaint, affidavit in support of the search warrant, and the probable
cause judicial determination statement (CR-215) was never filed with the court clerk” and
because the search warrant was not returned within forty-eight hours, as required by state law.

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ECF No. 1 at 7–8. The Wisconsin Court of Appeals addressed these arguments collectively
under Holifield’s ascribed heading, “Authentication Requirements.” See ECF No. 12-4 at 91–
92. The court determined that the criminal complaint was in fact filed with the clerk and that
Holifield’s other arguments were undeveloped.
The court was correct about the complaint: the state-court docket indicates that the
complaint was filed on September 5, 2010, see ECF No. 12-2 at 17, and the back page of the
complaint was file-stamped by the “Clerk of Circuit Court” at 12:20 p.m. on that date, see id.
at 33. Moreover, these claims are likely procedurally defaulted: Holifield did not raise them
in the circuit court, and the court of appeals appears to have resolved them state-law waiver
grounds. See Richardson v. Lemke, 745 F.3d 258, 268 (7th Cir. 2014) (holding that federal courts
cannot review the merits of habeas claims that were not fairly presented to the state courts or
that were resolved on independent and adequate state-law grounds).
The claims also fail on their merit. The search-warrant affidavit did not need to be filed
with the clerk of court, and the other documents were timely filed, see ECF No. 12-2 at 33
(complaint); ECF No. 12-2 at 315. (probable cause statement); ECF No. 12-2 at 245 (warrant
return). Moreover, even if there were some procedural irregularity concerning these
documents, Holifield has not provided any authority to support his claim that such technical
errors deprived the circuit court of personal jurisdiction. His citation to Wisconsin statutes
relating to civil procedure, see ECF No. 14-1 at 10–11, reflects a state-law issue not cognizable
in federal habeas review. And while Holifield vaguely references “substantive due process,”
see id., at no point in the state court appellate process did he frame this issue as a due-process
violation. Accordingly, Holifield has not met his burden of demonstrating that he is entitled
to relief under § 2254 on his personal-jurisdiction claim.

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III.

Warrantless Arrest
In County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991), the Supreme Court held

that “a jurisdiction that provides judicial determinations of probable cause within 48 hours of
arrest will, as a general matter, comply with the promptness requirement of Gerstein1.”
Holifield alleges that the Probable Cause Statement was not signed within forty-eight hours
of his warrantless arrest and that his trial lawyer was ineffective for failing to seek relief under
Riverside. See ECF No. 1 at 8. The record belies his claim. Holifield was arrested without a
warrant at 5:30 a.m. on September 2, 2010. See ECF No. 12-2 at 314. The Probable Cause
Statement was signed by a judicial court commissioner at 3:15 p.m. on September 3, 2010—
that is, well within forty-eight hours of Holifield’s warrantless arrest.
Holifield contends the form was actually signed “months after the 48 hour time
period” and backdated to September 3. ECF No. 1 at 8. He claims the original Probable Cause
Statement wasn’t presented until his initial appearance on September 5 and wasn’t signed by
the court commissioner. ECF No. 14-1 at 9–10. The record does contain an unsigned
Probable Cause Statement. See ECF No. 12-3 at 209. But Holifield has not presented any
evidence to support his theory that this form, rather than the signed one, is the original. He
attempts to buttress his second-form theory by referencing the initial appearance transcript.
According to Holifield, the State told the court commissioner that bail was set at $5,000 on
the Probable Cause Statement when, in fact, the signed Statement shows it was $10,000. ECF
No. 14-1 at 10.
Holifield misrepresents the record. At the initial appearance, the court commissioner
stated, “What’s his bail presently set at on his CR-215? Five? That’s all? Really? He’s lucky

1

Gerstein v. Pugh, 420 U.S. 103 (1975).

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he didn’t have me set his bail on this.” ECF No. 12-5 at 5. This excerpt does not establish the
unsigned Probable Cause Statement as the original. The court commissioner’s comments may
have been directed at anyone in the courtroom; it is not clear if anyone answered the question
or whether he had any document in front of him. Moreover, Holifield’s initial bail is not
written on the unsigned version of the form. And the record contains no evidence of a third
version of the form. Even if it did, the missing Probable Cause Statement would not
necessarily prove that the signed version was backdated or that the probable-cause
determination was untimely.
Ultimately, however, the case of the second (third?) Probable Cause Statement is
immaterial. The dismissal of criminal charges does not automatically flow from a Riverside
violation. See Powell v. Nevada, 511 U.S. 79, 84 (1994). Nor is there any indication that the
State exploited the alleged delay to its advantage. Thus, it’s unclear what relief (if any)
Holifield would have been entitled to, even assuming that more than forty-eight hours passed
between his warrantless arrest and the judicial probable-cause determination. Holifield
therefore has not met his burden of demonstrating that his counsel was ineffective for failing
to raise these issues.
IV.

Identification
Holifield alleges that he was falsely identified via a “highly suggestive identification

procedure.” ECF No. 1 at 9. According to Holifield, the informant was twice unable to pick
him out of a traditional photo array. Rivamonte then showed the informant a single
photograph of Holifield, and the informant identified him as the seller. Holifield contends this
false identification unduly influenced the officers’ investigation. The Wisconsin Court of
Appeals determined that Holifield waived this argument by not timely objecting to the alleged

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unlawful identification procedure. See ECF No. 12-4 at 83–84. The court further determined
that Holifield conceded that “a challenge to the use of a single photograph would have failed
even if it had not been waived,” as he failed to respond to the State’s argument. Id. at 84.
Because this issue was resolved on independent and adequate state-law grounds, I am unable
to review the merits of it here. See Richardson, 745 F.3d at 268.2
Putting waiver aside, Holifield has not demonstrated an entitlement to habeas relief
on his identification claim. Eyewitness identification testimony violates a defendant’s due
process rights only “when it creates a ‘substantial likelihood of irreparable misidentification.’”
Gregory-Bey v. Hanks, 332 F.3d 1036, 1045 (7th Cir. 2003) (quoting Neil v. Biggers, 409 U.S.
188, 198 (1972)). Here, the informant testified that he first met Holifield when he
accompanied a friend to purchase heroin from Holifield in the area where he lived. ECF No.
12-5 at 210–14. The friend later gave the informant the seller’s phone number and identified
the seller as “Al.” Id. at 210. The informant also testified that he and Holifield engaged in
small talk during each controlled buy. See id. at 192, 199, 208. Based on these circumstances,
there was not a substantial likelihood that the informant misidentified Holifield, even
assuming the identification procedure was unduly suggestive.
V.

Informant’s Immunity
Holifield alleges that his lawyer failed to investigate and challenge the informant’s “off-

the-record” immunity deal. ECF No. 1-1 at 3–4. He believes the informant wrongly testified
that he was appearing on his own “free will because it was time to turn his life around.” Id. at
3. The truth—according to Holifield—was that the informant received a deal on a pending

2

To the extent Holifield claims that counsel was ineffective for failing to timely object to the allegedly improper
identification, that claim is defaulted as well—Holifield conceded (through waiver) that a such a challenge would
have been unsuccessful.

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forgery case and was never charged after the police found him inside a drug house “with a
heroin needle in his possession.” ECF No. 14-1 at 18. To support this argument, Holifield
points out that the informant’s attorney on the forgery case was present during the informant’s
testimony against Holifield. Id.
The Wisconsin Court of Appeals determined that Holifield’s immunity claim was
contradicted by the record, as the informant and Rivamonte both testified that the informant
was not promised anything in exchange for his testimony. ECF No. 12-4 at 82. The court
therefore held “[t]here is no merit to Holifield’s ineffective assistance claim.” Id.
The court of appeals’ resolution of this issue was not objectively unreasonable. The
court correctly determined that the informant and Rivamonte testified there was no deal. See
ECF No. 168, 184, 212, 240–41. That the informant’s pending charges apparently were
resolved in a manner favorable to him does not prove the existence of an off-the-record
promise of leniency in exchange for testimony against Holifield. Holifield nevertheless
contends he should have been allowed more latitude in cross-examining the informant about
drug treatment court and a possible withheld sentence. Prior to trial, Holifield’s lawyer sought
permission to cross-examine the informant on his cooperation and the drug treatment court
requirements. ECF No. 12-5 at 55–56. The prosecutor explained that the informant was in
drug treatment court on a forgery case but that he wasn’t involved in that case and didn’t have
any discussions with the prosecutor who was handling it. See id. at 56, 168–69. The trial court
permitted both sides to asks a few questions about a possible deal and the informant’s pending
charges, and they did. See id. at 169. Holifield has not sufficiently explained what more his
lawyer could have done or (crucially) how further questioning would have affected the
outcome of his trial. Accordingly, Holifield has not met his burden of demonstrating that he

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is entitled to relief under § 2254 on his claim that the informant received immunity for his
testimony.
VI.

Informant’s Statements
Holifield alleges that the State withheld the audio or written statements made by the

informant. ECF No. 1-2 at 4. He did not present this claim in state court; thus, it is
procedurally defaulted, and I cannot review it here. Moreover, Holifield merely speculates—
without any supporting evidence—that these statements even exist. See ECF No. 14-1 at 21–
24. And speculation does not merit an evidentiary hearing “to determine the whereabouts of
the statements,” ECF No. 2 at 12. Accordingly, Holifield has not met his burden of
demonstrating that he is entitled to relief under § 2254 on his claim concerning the informant’s
alleged statements.
VII.

Identification of Natasha Davis
Holifield alleges that his lawyer failed to obtain the proper documentation to prove

that he may have been mis-identified. ECF No. 1-1 at 5–6. He believes Rivamonte lied when
he said that officers and the informant positively identified his girlfriend, Natasha Davis,
during the third controlled buy on August 31, 2010. Holifield claims to have proof that Davis
was working out of state at that time; he faults his lawyer for not doing more to present this
evidence to the jury.
At trial, the informant testified that Holifield’s girlfriend was present during the third
controlled buy. See ECF No. 12-5 at 226. Rivamonte also testified that the informant
positively identified Davis. See id. at 315–16. Davis testified on behalf of the defense. Prior to
her testimony, defense counsel sought permission to introduce evidence—three handwritten
receipts from the “Gold Nugget,” a strip club located in Iron Mountain, Michigan, where

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Davis apparently tended bar and danced under the stage name “Luscious”—showing that
Davis was working out of state on August 31, 2010. Id. at 532–42; see also ECF No. 12-3 at
162. The trial court denied counsel’s request on hearsay and reliability grounds. See ECF No.
12-5 at 539–45. The court did, however, permit Davis to testify about her whereabouts on the
31st. She stated that she was in Michigan working as a bartender/exotic dancer on that day.
See id. at 555–56.
The Wisconsin Court of Appeals determined that Holifield’s trial lawyer was not
ineffective for failing to raise the identification issue or present the alibi evidence from his
girlfriend. ECF No. 12-4 at 81–82. The court noted that “the crux of the defense case was
that” Holifield had been misidentified. Id. at 82. The court also noted that counsel “fought
hard, albeit unsuccessfully, to have Holifield’s girlfriend’s pay stubs admitted” and that
counsel “successfully presented the girlfriend’s testimony.” Id.
The court of appeals’ decision did not contradict nor unreasonably apply clearly
established federal law and did not involve an unreasonable determination of the facts.
Defense counsel tried to get the receipts admitted. She also explained, “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.” ECF No. 12-5 at 542. Counsel’s efforts were reasonable given the cards she was
dealt. So too was the trial court’s evidentiary ruling on the issue. Accordingly, Holifield has
not met his burden of demonstrating that he is entitled to relief under § 2254 on his claim
concerning the alleged misidentification of Davis during the third controlled buy.

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VIII. Drug Analyst’s Report
Holifield alleges that counsel relieved the State of its burden of proof and right to crossexamine the drug analyst by stipulating that the State could introduce the drug analyst’s report
(that the drugs inside the home were cocaine and heroin) rather than insisting on testimony
and cross-examination of the analyst. ECF No. 1-1 at 6. According to Holifield, the State
failed to disclose the report within thirty days and counsel failed to explain the stipulation to
him. Thus, in Holifield’s view, the stipulation should not be legally binding against him. He
also maintains that counsel failed to investigate and challenge the defects within the report.
The Wisconsin Court of Appeals held that Holifield forfeited his right to challenge the
results of the drug testing and to confront the drug analyst when he agreed to the stipulation.
ECF No. 12-4 at 86. The court noted that Holifield personally agreed to the stipulation on the
record and never complained that counsel’s explanation was lacking or that he needed more
time to consider the stipulation.
The state court reasonably found that Holifield forfeited this claim by entering into the
written stipulation and agreeing to the stipulation on the record. The case cited by Holifield—
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009)—is factually inapposite; it involved
the admission of certificates into evidence over the objection of the defense. Here, Holifield
entered into a stipulation regarding the drug analyst’s report; he did not object. Indeed, he
expressed no reservations about the stipulation when asked about it on the record by the trial
court, and he twice told the court the he had had enough time to discuss the stipulation with
his lawyer. See ECF No. 12-5 at 405–07. Accordingly, Holifield has not met his burden of
demonstrating that he is entitled to relief under § 2254 on his claim concerning the drug
analyst’s report.

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IX.

Sufficiency of the Evidence
Holifield alleges that the evidence presented at trial was insufficient to support his

conviction. ECF No. 1-1 at 7. He first maintains the State would not have met its burden of
proof absent the unreliable identification testimony and the evidence illegally obtained via
that search warrant. But, as discussed above, this evidence was properly admitted. Holifield
also maintains the State failed meet its burden of proof on the party-to-the-crime element, the
keeping-of-a-drug-house charge, and the constructive-possession charge. The Wisconsin
Court of Appeals rejected this argument, noting that officers found controlled substances in a
pair of pants that were located at the foot of the bed Holifield had been sleeping in. See ECF
No. 12-4 at 81. Although Holifield denied the pants were his, the court explained that the jury
could have reasonably believed they were, given that “the telephone number assigned to the
cell phone found in the pants matched the number [the informant] called when he set up the
August 31, 2010 drug transaction.” Id.
The court of appeals’ decision was not objectively unreasonable. Put simply, the
circumstantial evidence in the record was sufficient to sustain Holifield’s conviction. The fact
that the cash found in the pants along with drugs was apparently returned to Holifield’s
grandmother after trial, see ECF No. 14-1 at 29, does not prove the drugs were not his.
Holifield therefore has not met his burden of demonstrating that he is entitled to relief under
§ 2254 on his sufficiency-of-the-evidence claim.
X.

Juvenile Records
Finally, Holifield alleges that the trial court abused its discretion when it considered

Holifield’s juvenile records during his adult sentencing hearing. ECF No. 1-1 at 7. He
contends “[t]he United States Supreme Court has ruled that the defendant’s juvenile record

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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. He cites two Supreme
Court cases in support: United States v. Tucker, 92 S. Ct. 589 (1972) and Gideon v. Wainwright,
372 U.S. 335 (1963). These cases, however, involved the improper consideration of adult
convictions obtained in violation of the right to counsel. They are of no help to Holifield here.
Juveniles have had the right to counsel in juvenile proceedings since 1967. See In re
Gault, 387 U.S. 1 (1967). Holifield was born in 1975. Thus, as the Wisconsin Court of Appeals
reasonably determined, the trial court clearly did not consider any pre-Gault juvenile
adjudications or convictions. See ECF No. 12-4 at 85–86. And Holifield does not otherwise
argue that he did not have counsel during any of the juvenile proceedings purportedly relied
upon at his sentencing hearing. Accordingly, Holifield has not met his burden of
demonstrating that he is entitled to relief under § 2254 on his claim concerning the alleged
improper consideration of his juvenile records.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, this court must “issue
or deny a certificate of appealability when it enters a final order adverse to the applicant.” A
certificate should be issued only where the petitioner “has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For a certificate of appealability to
issue, a petitioner must show that “reasonable jurists” would find this court’s “assessment of
the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Here, I cannot conclude that the assessment of the merits of Holifield’s claims is debatable by
reasonable jurists.

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Moreover, where a petition is denied (here, in part) on procedural grounds, the
petitioner must show both that reasonable jurists would “find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would find
it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at
484. Here, no reasonable jurist would find the court’s procedural rulings debatable.
Accordingly, a certificate of appealability will be denied.
CONCLUSION
For the reasons given above, the petition is DENIED and the case is DISMISSED. A
certificate of appealability is DENIED. The clerk will enter judgment accordingly.
SO ORDERED this 29th of May, 2020.

__________________________
STEPHEN C. DRIES
United States Magistrate Judge

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