Smith v. Schwochert

Filing 29

ORDER signed by Judge J P Stadtmueller on 7/15/15: DENYING 1 Petitioner's Petition for Writ of Habeas Corpus; DENYING a certificate of appealability; DENYING as moot 27 Petitioner's Motion for Extension of Time; and DISMISSING this action with prejudice. See Order. (cc: Petitioner, all counsel)(nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ROSHAWN SMITH,
Petitioner,

Case No. 13-CV-932-JPS

v.
JIM SCHWOCHERT, Warden,

ORDER
Respondent.
The petitioner, Roshawn Smith (“Smith”), filed a petition for a writ of
habeas corpus. (Docket #1). Magistrate Judge Aaron E. Goodstein screened
that petition and allowed the petition to proceed. (Docket #5). Due to the
non-consent of the parties, the case was reassigned to this branch of
the Court. (Docket #9). The State of Wisconsin (hereafter “the State” or
“Wisconsin”) then filed a response on the respondent’s behalf. (Docket #15).
Smith filed a supporting brief, to which the State responded. (Docket #16,
#19). Smith failed to file a reply within the Court’s briefing schedule, so the
matter is fully briefed and ready for disposition.1
In reaching its decision, the Court will begin by describing the factual
background of this case. Thereafter, the Court will discuss the pertinent law
and its application to the specific facts of the case. As discussed in detail
below, the Court finds that none of Smith’s claims form the basis for habeas
relief.

1

The Court forewarned Smith that no further extensions of time would be
granted. (See Docket #20). As such, his request for an extension of time (Docket #27)
will be denied as moot.

1.

BACKGROUND
In 2007, the State of Wisconsin charged Smith in a criminal complaint

with one count of possession with intent to deliver more than 10,000 grams
of THC as a party to a crime, contrary to Wis. Stat. §§ 961.41(1m)(h)5 and
939.05 (Docket #15-21 at 3). Smith was alleged to have been involved in a
scheme to ship bricks of marijuana from California to Brown County,
Wisconsin, via Federal Express. (Docket #15-15 at 4).
1.1

Circuit Court Proceedings

The following evidence was presented. The Green Bay Police
Department was notified in September 2006 by a California police official
that two suspicious packages were being transported from California to
Green Bay via FedEx. The Green Bay officers, with the consent of FedEx, took
a trained dog to a FedEx facility to sniff the packages for the presence of
narcotics. The dog "alerted" to the packages. (Docket #15-7 at 2).
The packages were addressed to "Jo Korbine" at a Green Bay address.
A police officer dressed as a FedEx employee delivered the packages to that
address. A person named Shannon Kortbein (“Kortbein”) accepted delivery,
signed for the packages, and asked that they be placed on the porch. Shortly
thereafter, police officers executed a search warrant and seized the packages.
The shipping labels had been removed and were found torn up in Kortbein's
kitchen. While the officers were searching Kortbein's residence, they saw two
men—one later identified as Terri Thomas (“Thomas”)—appear to approach
the residence. Subsequent testing showed that each package contained about
twenty-five pounds of marijuana and tested positive for THC. (Docket #15-7
at 2).
Kortbein testified at trial that she and Smith had been friends for
several years, and Smith had introduced her to Thomas. Shortly after their
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introduction, Thomas called Kortbein on her cell phone and offered to pay
her $500 if she would accept delivery of packages at her residence. She
agreed. Approximately a week later she received a package. Thomas picked
up the package a few days later, and shortly thereafter Smith gave her $400
without explanation. Prior to September 20, 2006, she had received two more
deliveries. Both times Thomas picked up the packages and, shortly
thereafter, Smith paid her $400. (Docket #15-7 at 3).
Another State witness, David Mehlhorn (“Mehlhorn”), testified that
he was a friend of Smith and had agreed to accept delivery of packages
between July and October of 2006. Mehlhorn accepted deliveries on three
occasions. After the packages were delivered, Smith and Thomas would pick
them up. Mehlhorn reported this to the police after seeing a story about
Thomas in the news. (Docket #15-7 at 3).
At trial, Smith did not contest the chemical composition and weight
of the seized material; instead, his defense was that he had no involvement
in the crime. (See Docket #15-35 at 1-2). Smith entered a written stipulation
with the State before trial that the material seized by law enforcement
constituted over 10,000 grams of THC, which was the amount sufficient to
constitute the Class E felony of possession with intent to deliver. (Docket #1515 at 6). During the course of trial, the circuit court read the stipulation to the
jury and instructed the jurors at the close of evidence to accept as a proven
fact the amount of THC seized. (Docket #15-36 at 21).
Ultimately, the jury convicted Smith of party to the crime of
possession with intent to deliver TCH, as charged in the information.
(Docket #15-36 at 147). The circuit court then sentenced Smith to 6 years of
initial confinement and 5 years of extended supervision. (Docket #15-1 at 1).
With the benefit of counsel, Smith filed a post-conviction motion alleging that
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he was denied the right to have the jury determine the weight of the element
of the offense and that the trial evidence was insufficient to support the
verdict. (Docket #15-4 at 34-35). The circuit court denied the motion, finding
that Smith had made a knowing, voluntary, intelligent waiver of the right to
have the jury determine the weight of the drug and that the evidence was
sufficient to support the conviction. (Docket #15-4 at 42-43).
1.2

Appeal of Conviction

Smith appealed his conviction to the Wisconsin Court of Appeals (“the
court of appeals”). On appeal, Smith made two arguments in favor of
reversal: (1) that he did not validly waive his right to have the jury determine
the weight of the THC; and (2) that the evidence was insufficient to
support his conviction.(Docket #15-4 at 8). The court of appeals reversed and
remanded the case in finding that: (1) the evidence was sufficient for the
jury to find Smith guilty of possession with intent to deliver; but (2) that
Smith was denied his right to have the jury determine the weight element.
(Docket #15-7 at 18-19).
Both parties requested review by the Wisconsin Supreme Court, and
the petitions were granted. (Docket #15-8). After briefing and oral argument,
the Wisconsin Supreme Court issued a July 12, 2012 decision and order
reversing the court of appeals. State v. Smith, 2012 WI 91, 342 Wis. 2d 710, 817
N.W.2d 410, cert. denied, 133 S. Ct. 635 (U.S. 2012) (Docket #15-15). A
five-justice majority of the court held that, while Smith had a constitutional
right to have the jury determine the amount of the drug, and the trial court
determined this question for the jury without eliciting a proper waiver of that
right from Smith, this error was harmless. Smith, 342 Wis. 2d 710, ¶¶ 46-75
(Docket #15-15 at 3). Additionally, the court unanimously concluded that the

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evidence was sufficient to sustain the verdict Smith, 342 Wis. 2d 710, ¶¶ 27-45
(Docket #15-15 at 14-26).
Smith, by counsel, filed a petition for a writ of certiorari in the United
States Supreme Court challenging the legal standard applied by the
Wisconsin Supreme Court in rejecting his sufficiency-of-the-evidence claim
(Docket #15-16). The Court denied the petition in a November 13, 2012 order
(Docket #15-17).
2.

DISCUSSION
Smith is entitled to 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). The Court begins by describing the standard that it must employ
in determining whether Smith, in fact, is entitled to habeas relief. It then turns
to the substance of his claims.
2.1

Standard of Review

Because the state courts adjudicated Smith’s claims on their merits,
the Court may grant a writ of habeas corpus only if the state court’s
decision was: (1) “contrary to…clearly established federal law, as determined
by the Supreme Court of the United States”; (2) “involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States”; or (3) “was based on an unreasonable
determination of the facts in light of the evidence presented in the state court
proceeding.” 28 U.S.C. § 2254(d)(1–2); see also Conner v. McBride, 375 F.3d 643,
648–49 (7th Cir. 2004) (citing Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir.
1997)).
“A state court decision is contrary to clearly established federal law if
the court applies a rule that plainly contradicts the Supreme Court's
governing rule or if it comes to a result different than did the Supreme Court
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on substantially identical facts.” Avila v. Richardson, 751 F.3d 534, 536 (7th Cir.
2014) (citing Williams v. Taylor, 529 U.S. 362, 405–06 (2000)); see also Kamlager
v. Pollard, 715 F.3d 1010, 1016 (7th Cir. 2013) (citing Bell v. Cone, 535 U.S. 685,
694 (2002); Williams, 529 U.S. at 405–06; McNary v. Lemke, 708 F.3d 905, 913
(7th Cir. 2013)).
“A decision involves an ‘unreasonable application’ of Supreme Court
precedent if the decision, while identifying the correct governing rule of law,
applies it unreasonably to the facts of the case.” Bailey v. Lemke, 735 F.3d 945,
949 (7th Cir. 2013) (citing Williams, 529 U.S. at 407). However, the Supreme
Court has made clear that “an unreasonable application of federal law is
different from an incorrect application of federal law.” Williams, 529 U.S. at
410. In fact, Smith will be entitled to habeas relief only if he can “show that
the state court’s ruling on the claim…was so lacking in justification that there
was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington v. Richter, 526 U.S. 86,
131 S.Ct. 770, 786–87 (2011); see also Taylor v. Grounds, 721 F.3d 809, 817 (7th
Cir. 2013).
“A decision ‘involves an unreasonable determination of the facts if it
rests upon factfinding that ignores the clear and convincing weight of the
evidence.’” Bailey v. Lemke, 735 F.3d 945, 949–50 (7th Cir. 2013) (quoting
Goudy v. Basinger, 604 F.3d 394, 399–400 (7th Cir. 2010); citing Ward v. Sternes,
334 F.3d 696 (7th Cir. 2003)). The petitioner bears the burden of proving that
the state court's application of federal law was unreasonable, and the
“unreasonable application” prong of § 2254(d) “is a difficult standard to
meet.” Jackson v. Frank, 348 F.3d 658, 662 (7th Cir. 2003).

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2.2

Substantive Analysis

With that standard of review in place, the Court now addresses
Smith’s claims for relief. Smith challenges his conviction on two grounds: (1)
that his right to a jury trial was violated when the trial court answered an
element of the charged offense for the jury based on the parties stipulation
that the amount of THC seized exceeded 10,000 grams; and (2) that the
evidence was insufficient to support his conviction for possession of THC
with intent to deliver as a party to a crime. As discussed in detail below, the
Court finds that Smith is not entitled to habeas relief on either ground.
2.2.1

Right to a Jury Trial

Smith’s first claim for relief is based upon his claim that his right to a
jury trial was violated when the trial court answered an element of the
offense for the jury based on a stipulation that the amount of THC seized
exceeded 10,000 grams. The Wisconsin Supreme Court held that Smith had
a constitutional right to a jury determination of the weight of the drug and
that Smith had not made a knowing, intelligent, or voluntary waiver of that
right (Docket #15-15 at 26); however, the court also held that the error was
subject to harmless-error review and that the State “easily satisfied” that
standard. (Docket #15-15 at 39). Smith does not explicitly attack the
Wisconsin Supreme Court’s holding that the error was harmless (see Docket
#1 at 6), however, his brief in support does argue that the appropriate
remedy for the error is a new trial. (Docket #16 at 24-25). As such, the Court
will liberally construe Smith’s petition as challenging the state court’s
holdings that the trial court’s error is subject to harmless review and that the
error was indeed harmless.
Where, as here, when the state court has conducted a harmless error
analysis, this Court's role is to decide whether that analysis was a reasonable
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application of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705
(1967). Kamlager v. Pollard, 715 F.3d 1010, 1016 (7th Cir. 2013). Under
Chapman, “before a federal constitutional error can be held harmless, the
court must be able to declare a belief that it was harmless beyond a
reasonable doubt.” 386 U.S. at 24. An error is harmless if the state proves
“beyond a reasonable doubt that the error complained of did not contribute
to the verdict obtained.” Id. In applying Chapman, the Supreme Court has
articulated the inquiry as such: “Is it clear beyond a reasonable doubt that a
rational jury would have found the defendant guilty absent the error?” Neder
v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). If the
state court reasonably applied the Chapman standard, “the federal case is
over and no collateral relief issues .” Johnson v. Acevedo, 572 F.3d 398, 404 (7th
Cir. 2009). But if the state court unreasonably applied the Chapman standard,
this court must make an independent decision, applying the Brecht2 standard
of “actual prejudice” to determine whether the error was harmless. Id.
Here, all parties agreed that Smith had a constitutional right to a jury
determination of the weight of the drug and that Smith had not made a
knowing, intelligent, and voluntary waiver of that right. However, the
Wisconsin Supreme Court also found this error to be harmless. (Docket #1515 at 32). In making this determination, the Wisconsin Supreme Court cited
State v. Harvey, 2002 WI 93, 254 Wis.2d 442, 647 N.W.2d 189, for the
proposition that it was “‘clear beyond a reasonable doubt that a properly
instructed, rational jury would have found the defendant guilty of the…

2

Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).
Under Brecht, a constitutional error is considered harmless unless it can be shown
to have had a substantial and injurious effect or influence in determining the jury's
verdict. Id. at 631.

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[charged] offense.’” (Docket #15-15 at 39) (quoting Harvey, 252 Wis.2d ¶ 48).
The Harvey court cites Chapman and Neder as the standard for its harmless
error analysis. Harvey, 252 Wis.2d ¶¶ 46-47. The harmless error standard
utilized by the Wisconsin Supreme Court is consistent with the standard as
articulated in Chapman and Neder and thus the state court's decision was not
contrary to, nor did it involve an unreasonable application of, Supreme Court
precedent.
Nor was the state court decision based on an unreasonable
determination of the facts in light of the evidence presented in the state
proceeding. As the Wisconsin Supreme Court articulated,
Smith has never disputed that more than 10,000 grams of THC
were found in the packages seized from Kortbein. Quite to the
contrary, he expressly admitted in the circuit court no fewer
than four times that those packages contained THC in an
amount greater than 10,000 grams, and the jury was informed
of that admission. As a result, “it is clear beyond a reasonable
doubt that a properly instructed, rational jury would have
found [Smith] guilty of the…[charged] offense,” “the error
[therefore] cannot have contributed to the verdict,” and it was
consequently harmless. Harvey, 254 Wis. 2d 442, ¶48; see also
Neder, 527 U.S. at 18 (holding that an error is harmless if it “did
not contribute to the verdict,” requiring a court to conclude
“beyond a reasonable doubt that a rational jury would have
found the defendant guilty absent the error”).
(Docket #15-15 at 39-40). Where Smith did not dispute the weight element
and repeatedly admitted to facts establishing the element, there can be no
doubt that the jury would have found the weight element absent the trial
court’s error.
Smith has not shown that the Wisconsin Supreme Court harmless
error analysis was an unreasonable application of Chapman and Neder. As
such, Smith is not entitled to habeas relief on this ground.
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2.2.2

Sufficiency of the Evidence

Smith claims that the court of appeals and Wisconsin Supreme Court
erred in rejecting his argument that the trial evidence was insufficient to
support the conviction.
The Due Process Clause of the Fourteenth Amendment “protects the
accused against conviction except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime for which he is charged.” In re
Winship, 397 U.S. 358, 364 (1970). When insufficiency of evidence is asserted
as the basis for a habeas petition, the petitioner must show “‘upon the record
evidence adduced at the trial no rational trier of fact could have found proof
beyond a reasonable doubt.’“ Cabrera v. Hinsley, 324 F.3d 527, 533 (7th Cir.
2003) (citing Jackson v. Virginia, 443 U.S. 307, 319, 324 (1979)). The inquiry
does not require the federal habeas court to “ask itself whether it believes
that the evidence at trial established guilt beyond a reasonable doubt.”
Jackson, 443 U.S. at 319 (citing Woodby v. INS, 385 U.S. 276, 282 (1966)).
Instead, the relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. Id.
A federal habeas court determines the sufficiency of the evidence in
reference to the substantive elements of the criminal offense as defined by
state law. See Jackson, 443 U.S. at 324 n.16. Under Wisconsin law, a defendant
is guilty under the conspiracy prong of the party-to-a-crime statute, Wis. Stat.
§ 939.05(2)(c), if the State to proves the following: (1) there was an agreement
among two or more persons to direct their conduct toward the realization of
a criminal objective; and, (2) each member of the conspiracy individually
consciously intended the realization of the particular criminal objective, and

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had an individual stake in the venture. State v. Hecht, 116 Wis. 2d 605, 620 342
N.W.2d 721 (1984).
In this case, in considering Smith’s sufficiency argument, the
Wisconsin Supreme Court used a standard consistent with Jackson. While the
state court did not cite to Jackson, it cited to State v. Poellinger, 153 Wis.2d 493,
451 N.W.2d 752 (1990), which pronounces a state law standard that is the
functional equivalent to Jackson:
[I]n reviewing the sufficiency of the evidence to support a
conviction, an appellate court may not substitute its judgment
for that of the trier of fact unless the evidence, viewed most
favorably to the state and the conviction, is so lacking in
probative value and force that no trier of fact, acting
reasonably, could have found guilt beyond a reasonable doubt.
If any possibility exists that the trier of fact could have drawn
the appropriate inferences from the evidence adduced at trial
to find the requisite guilt, an appellate court may not overturn
a verdict even if it believes that the trier of fact should not have
found guilt based on the evidence before it.
Poellinger, 153 Wis. 2d at 757–58 (internal citation omitted). As such, the
Wisconsin Supreme Court identified the correct governing legal rule. Thus,
the only issue before this Court to resolve on habeas review is whether the
state court unreasonably applied that rule to the facts of Smith’s case or
unreasonably determined the facts in light of the evidence presented. In
making that determination, it is important to recall that in a federal habeas
corpus proceeding, the court's review is tempered by AEDPA's deferential
constraints.
Smith principally argues that the State’s case against him was built
only on circumstantial evidence and asserts that such a case cannot be upheld
on a sufficiency challenge if “the possible inferences from the state’s proofs
were no better than ‘equally reasonable’ with [his] innocent state of mind as
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with [his] guilty state of mind, State v. Haugen, 52 Wis. 791, 796, 191 N.W.2d
12 (1971), and there was no rational basis for the jury to make a choice
between them.” (Docket #16 at 16).
Smith contends that the State’s circumstantial case against him
consisted of essentially three factual components: (1) that Smith previously
introduced Thomas to Kortbein and that Thomas later asked Kortbein to
receive delivery of packages for him; (2) that Thomas promised to pay money
to Kortbein for the deliveries to her house and that Smith gave $400 in cash
to Kortbein following the two previous deliveries; and (3) that the two
packages delivered to Kortbein on September 20, 2006 contained marijuana.
(Docket #16 at 16-17). Smith argues that in examining “these factual
components in turn…[do] not support a reasonable inference of [his] guilt,
much less provide a rational basis to choose between the alternative
possibilities.
Keeping in mind the deferential habeas standard, the Court is obliged
to deny relief on sufficiency of the evidence grounds. This case is not a direct
appeal from a conviction in federal district court. Rather, it is a federal habeas
corpus review of a state court conviction. Thus, the Court’s review is
tempered by AEDPA's deferential constraints. As previously stated, when
insufficiency of evidence is asserted as the basis for a habeas petition, the
petitioner must show “‘upon the record evidence adduced at the trial no
rational trier fact could have found proof beyond a reasonable doubt.’“
Cabrera, 324 F.3d at 533 (7th Cir. 2003) (citing Jackson, 443 U.S. 307, at 319,
324). Smith has failed to do this.
As summarized by the state court,
the evidence suggested that Smith introduced Thomas and
Kortbein and then facilitated the transfer of money from one to
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the other after Kortbein received the drugs and conveyed them
to Thomas. Thus, the jury could reasonably have concluded
that there was “[a]n agreement among two or more persons to
direct their conduct toward the realization of a criminal
objective,” namely the delivery of marijuana. Hecht, 116 Wis.
2d at 625. Furthermore, Smith’s personal involvement in the
acts described above—i.e., the introduction of Thomas to
Kortbein and the delivery of the money—supports a rational
inference that he “individually [and] consciously intend[ed] the
realization of the particular criminal objective.” Id. He thus had
“an individual stake in the venture,” id., and the second
element of PTC conspiracy was satisfied. Therefore, there was
sufficient evidence for the jury to find Smith guilty of being a
party to the crime of possession with intent to deliver more
than 10,000 grams of THC.
(Docket #15-15 at 21-22). Viewing the evidence in the light most favorable to
the prosecution, as the Court must, the Court cannot conclude that no
rational trier fact could have found the essential elements of the party to a
crime beyond a reasonable doubt.
As such, Smith cannot show that the state court unreasonably applied
Jackson to the facts of his case or unreasonably determined the facts in light
of the evidence presented. For these reasons, the Court must deny habeas
relief on the second ground set forth in Smith’s habeas petition.
3.

CONCLUSION
Having concluded that none of Smith’s claims form the basis for

habeas relief, the Court is obliged to deny Smith’s habeas petition.
Finally, under Rule 11(a) of the Rules Governing Section 2254 Cases,
“the district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” To obtain a certificate of
appealability under 28 U.S.C. § 2253(c)(2), Smith must make a “substantial
showing of the denial of a constitutional right” by establishing that

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“reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal citations omitted). While
Rule 11(a) permits a district court to direct the parties to submit arguments
on whether a certificate of appealability should be issued, additional
arguments are not necessary here. As the Court discussed extensively above,
reasonable jurists would not debate whether the petition should have been
resolved in a different manner. No reasonable jurist would find it debatable
that Smith’s petition fails to make any showing—let alone a substantial
showing—of a violation of a constitutional right. As a consequence, the Court
must deny a certificate of appealability as to the petitioner’s petition.
Accordingly,
IT IS ORDERED that the petitioner’s petition for a writ of habeas
corpus (Docket #1) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that a certificate of appealability as to the
petitioner’s petition be and the same is hereby DENIED;
IT IS FURTHER ORDERED that the motion for extension of time
(Docket #27) be and the same is hereby DENIED as moot; and
IT IS FURTHER ORDERED that this action be and the same is hereby
DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 15th day of July, 2015.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge
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