Woods v. Kemper
Filing
17
DECISION AND ORDER DENYING 1 Petition for Writ of Habeas Corpus filed by Stephen Lynn Woods signed by Magistrate Judge Nancy Joseph on 2/24/14. FURTHER ORDERED that this case is DISMISSED. ALSO ORDERED that a certificate of appealability shall not issue. (cc: all counsel, mailed to petitioner)(djd)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
STEPHEN LYNN WOODS,
Petitioner,
v.
Case No. 13-CV-973
PAUL KEMPER,
Warden, Racine Correctional Instutiton,
Respondent.
DECISION AND ORDER DENYING PETITION
FOR WRIT OF HABEAS CORPUS AND DISMISSING CASE
Stephen Lynn Woods (“Woods”), a prisoner in Wisconsin custody, seeks a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Woods was convicted of one count of armed robbery. (Habeas
Petition at 2, Docket # 1.) Woods was sentenced to ten years of initial confinement, followed by five
years of extended supervision. (Answer, Ex. A at 124, Docket # 12-1.) Woods alleges that his
conviction and sentence are unconstitutional.
The parties have briefed the petition for a writ of habeas corpus and the petition is ready for
disposition. For the reasons stated below, the petition for writ of habeas corpus will be denied and
the case dismissed.
BACKGROUND
A Milwaukee County jury found Woods guilty of one count of armed robbery with threat of
force. (Docket # 12-1.) Woods’ charges stem from an incident that occurred in the early morning
hours of May 20, 2006. A convenience store employee saw a man bring a box of white Tic Tacs to
the store’s counter. (State v. Woods, Appeal No. 2010AP2039 (May 10, 2011), Answer, Ex. F, Docket
# 12-6 at 2.) As the employee went to scan the Tic Tacs, the man displayed a handgun and told her
to empty the cash register drawer. (Id.) The employee gave the man the money, at which point he
told her to get on the floor. (Id.) When the employee heard the man leave the store, she called 911.
(Id.) The employee later realized that the box of white Tic Tacs was no longer on the counter. (Id.)
The police arrived at the store shortly after the incident and found an unopened box of Tic Tacs in
the parking lot, approximately thirty feet from the entrance. (Id.) Although a fingerprint was found
on the Tic Tac box, the State did not match the print to Woods until two years later. (Id.) Upon
doing so, the police presented the store employee with a photo display. (Id.)
The employee testified at Woods’ trial that she selected one of the photographs because “there
were certain features about [the individual’s] face that were familiar to me, the jaw[ ] line specifically,
expression in his face, just brought back like [that] feeling of the robbery again.” (Id. at 2-3.) She
described feeling terror upon seeing the photograph and explained it was a gut reaction. (Id. at 3.)
She further testified that she could not, however, say with one hundred percent certainty that the
individual in the photograph—who turned out to be Woods—was the robber. (Id.) During trial, the
employee testified that Woods looked different in court than when she saw him in May 2006 and
in the photograph as part of the display. (Id.) She further testified that seeing Woods in person did
not give her the same feeling of terror she experienced when she saw his photograph. (Id.) She
acknowledged having doubts as to whether Woods was the person responsible for the robbery. (Id.)
On direct appeal, Woods argued there was insufficient evidence to support his conviction.
(Docket # 12-6.) The Wisconsin Court of Appeals upheld Woods’ conviction (id.) and the Wisconsin
Supreme Court denied his petition for review (Attachment to Habeas Petition at 7, Docket # 1-1.)
Woods subsequently filed a pro se petition for state habeas corpus relief pursuant to State v. Knight,
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168 Wis. 2d 509, 484 N.W.2d 540 (1992), arguing that his appellate counsel was ineffective for
failing to pursue three particular issues on appeal. (State ex rel. Woods v. Paquin, Appeal No.
2012AP905 (Feb. 14, 2013), Answer, Ex. B, Docket # 12-2.) Specifically, Woods argued his
appellate counsel should have challenged the photo array identification as unduly suggestive; he
should have raised suppression of the employee’s identification as unfairly prejudicial; and finally,
appellate counsel should have challenged the State’s alleged commentary on Woods’ right to remain
silent. (Id.) The Wisconsin Court of Appeals denied Woods’ Knight petition on February 14, 2013.
(Id.) The Wisconsin Supreme Court denied review on August 1, 2013. (Answer, Ex. C, Docket #
12-3.) Woods filed the instant petition for a writ of habeas corpus on August 28, 2013. (Docket # 1.)
STANDARD OF REVIEW
Woods’ petition is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA),
Pub.L. No. 104-132, 100 Stat. 1214, which provides in pertinent part:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim–
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that 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).
This provision entitles federal courts acting within their jurisdiction to interpret the law
independently, but requires them to refrain from “fine tuning” state court interpretations. Lindh v.
Murphy, 96 F.3d 856, 870-77 (7th Cir. 1996), rev’d on other grounds, 521 U.S. 320 (1997). “Thus,
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although this court reviews the state court’s legal conclusions and mixed questions of law and fact
de novo, that review is ‘tempered by AEDPA’s deferential constraints.’” Hereford v. McCaughtry, 101
F. Supp. 2d 742, 746 (E.D. Wis. 2000) (quoting Sanchez v. Gilmore, 189 F.3d 619, 623 (7th Cir.
1999)).
A state court’s decision is “contrary to . . . clearly established Federal law as established by
the United States Supreme Court” if it is “substantially different from relevant [Supreme Court]
precedent.” Washington v. Smith, 219 F.3d 620, 628 (7th Cir. 2000) (quoting Williams v. Taylor, 120
S.Ct. 1495, 1519 (2000)). The court of appeals for this circuit recognized the narrow application of
the “contrary to” clause:
[U]nder the “contrary to” clause of § 2254(d)(1), [a court] could grant a writ of
habeas corpus . . . where the state court applied a rule that contradicts the
governing law as expounded in Supreme Court cases or where the state court
confronts facts materially indistinguishable from a Supreme Court case and
nevertheless arrives at a different result.
Washington, 219 F.3d at 628. The court further explained that the “unreasonable application of”
clause was broader and “allows a federal habeas court to grant habeas relief whenever the state court
‘unreasonably applied [a clearly established] principle to the facts of the prisoner’s case.’” Id.
(quoting Williams, 120 S.Ct. at 1523).
To be unreasonable, a state court ruling must be more than simply “erroneous” and perhaps
more than “clearly erroneous.” Hennon v. Cooper, 109 F.3d 330, 334 (7th Cir. 1997). Under the
“unreasonableness” standard, a state court’s decision will stand “if it is one of several equally
plausible outcomes.” Hall v. Washington, 106 F.3d 742, 748-49 (7th Cir. 1997). In Morgan v. Krenke,
the court explained that:
Unreasonableness is judged by an objective standard, and under the
“unreasonable application”clause,“a federal habeas court may not issue the writ
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simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law erroneously
or incorrectly. Rather, that application must also be unreasonable.”
232 F.3d 562, 565-66 (7th Cir. 2000) (quoting Williams, 120 S.Ct. at 1522), cert. denied, 532 U.S. 951
(2001). Accordingly, before a court may issue a writ of habeas corpus, it must determine that the
state court decision was both incorrect and unreasonable. Washington, 219 F.3d at 627.
ANALYSIS
In his petition, Woods challenges his conviction on four grounds: (1) there was insufficient
evidence to sustain his conviction; (2) ineffective assistance of appellate counsel; (3) the eye witness
identification should have been suppressed because the photo array was unduly suggestive; and (4)
the state violated his Fifth Amendment right against self-incrimination. (Docket # 1 at 6-10.) I
address each in turn.
1.
Sufficiency of the Evidence
Woods argues there was insufficient evidence to sustain his armed robbery 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
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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 of armed robbery, Wis. Stat. § 943.32(1)(b) and (2), if
the State proves that the defendant forcibly took property, owned by another, with the intent to steal,
and used or threatened to use a dangerous weapon. Wis. JI-Crim 1480 (2009).
In this case, in considering Woods’ sufficiency argument, the Wisconsin Court of Appeals
used a standard consistent with Jackson. While the court of appeals 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.
153 Wis. 2d at 507, 451 N.W.2d at 757-58 (1990) (internal citation omitted). As such, the court of
appeals 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 Woods’
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.
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Woods principally relies on United States v. Borum, 380 F.2d 595 (D.C. Cir. 1967), in support
of his sufficiency of the evidence argument. Borum involved a housebreaking where the
complainant’s home was entered and ransacked. Four fingerprints taken from one or two empty jars
were identified as the defendant’s. The complainant testified that the jars contained a valuable coin
collection and that the coin collection was stolen. Testimony placed the defendant within a mile and
a half of the complainant’s home during the time of the break-in. The court of appeals for the District
of Columbia found that while the government’s evidence showed that the defendant touched the jars
in question, there was no evidence, direct or circumstantial, that indicated the defendant touched the
jars in the course of the housebreaking. Thus, the case should not have been submitted to the jury.
380 F.2d at 596-97.
Woods also cites several decisions subsequent to Borum for the proposition that the
government must introduce evidence indicating that the objects on which the fingerprints were found
were generally inaccessible to the defendant. See Gibson v. Collins, 947 F.2d 780 (5th Cir. 1991);
United States v. Bush, 749 F.2d 1227 (7th Cir. 1984); United States v. Cary, 470 F.2d 469 (D.C. Cir.
1972); United States v. Corso, 439 F.2d 956 (4th Cir. 1971); United States v. Collon, 426 F.2d 939 (6th
Cir. 1970); and Stevenson v. United States, 380 F.2d 590 (D.C. Cir. 1966). For the cases where the
convictions were upheld, Woods argues that the object containing the defendant’s fingerprints was
generally inaccessible to the defendant, or circumstances were such that only the defendant could
have left the print. (Petitioner’s Br. at 23, Docket # 13.) Woods cites Gibson, Cary, and Bush for
support. The conviction was also upheld in Stevenson. Woods argues that the cases in which the
convictions were reversed, in contrast, involved common objects not unique to the crime scene.
(Docket # 13 at 22.) Woods cites Corso and Collon as examples. Woods argues that the Tic Tac box
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was not unique and easily transported; thus, the government must prove that the Tic Tac box was
generally inaccessible to him. (Id. at 22, 24.)
Although Woods argues that Borum, Corso, and Collon should control this Court’s analysis,
even if it was controlling law of this circuit, this case is not a direct appeal from a conviction in
federal district court. Rather, it is federal habeas corpus review of a state court conviction. Thus, my
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). Woods
has failed to do this. The store employee identified Woods as the person who committed the robbery.
She testified that when she saw Woods’ photograph “there were certain features about his face that
were familiar to me, the jawline specifically, expression in his fact, just brought back like feeling of
the robbery again.” (Sept. 15, 2009 Jury Trial Transcript, Answer, Ex. J, Docket # 12-11 at 74.)
Although she also testified that she could not identify Woods with one hundred percent certainty (id.
at 75), the man whose picture she picked out (who was later identified as Woods) made her feel the
same kind of terror she felt when the robbery was committed (id.). As the Wisconsin Court of
Appeals stated, whether the employee could make an accurate identification of Woods was a
question for the jury to resolve in determining her credibility. (Docket # 12-6 at 5.)
Further, the employee testified that the suspect placed a box of white Tic Tacs on the counter.
(Id. at 53.) When the suspect left, the Tic Tacs were gone. (Id. at 69.) A box of white Tic Tacs was
found approximately 30 feet from the building in the parking lot. (Docket # 12-12 at 71.) The
employee testified that the parking lot was swept every night. (Docket # 12-11 at 68.) An expert in
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the field of fingerprint identification testified that the fingerprint found on the Tic Tac box matched
Woods’ “with no uncertainty.” (Id. at 12, 23, 28.) Viewing the evidence in the light most favorable
to the prosecution, as I must, I cannot conclude that no rational trier fact could have found the
essential elements of the armed robbery beyond a reasonable doubt. As such, Woods cannot show
that the court of appeals unreasonably applied Jackson to the facts of his case or unreasonably
determined the facts in light of the evidence presented.
2.
Ineffective Assistance of Appellate Counsel
Woods argues that his appellate counsel was ineffective for failing to raise the following issues
on direct appeal: the trial court’s denial of Woods’ motion to suppress the photographic identification
evidence as unduly suggestive and as inadmissible under Wis. Stat. § 904.03 and the state’s alleged
violation of Woods’ self-incrimination privileges under the Fifth Amendment. (Docket # 13 at 27.)
To prevail on a claim of ineffective assistance of counsel, a petitioner must prove both deficient
performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687–88 (1984); Mason v. Hanks,
97 F.3d 887, 892 (7th Cir. 1996). Appellate counsel’s performance is deficient if counsel fails to
appeal an issue that is both obvious and clearly stronger than one that was raised. Williams v. Parke,
133 F.3d 971, 974 (7th Cir. 1997). It is not necessary, however, that appellate counsel “raise every
non-frivolous issue under the sun.” Mason, 97 F.3d at 893. In addition, a petitioner demonstrates the
requisite prejudice only when appellate counsel fails to raise an issue that “may have resulted in a
reversal of the conviction, or an order for a new trial.” Id.
Besides making the conclusory statement that “[a]ll three issues are obvious and clearly
stronger than the issue raised by appellate counsel,” Woods offers no argument as to why these three
issues were clearly stronger than the sufficiency of the evidence argument. (Docket # 13 at 27.)
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Woods similarly makes no attempt to demonstrate prejudice beyond conclusory assertions. I will
address each claim to determine whether Woods has shown ineffective assistance of appellate
counsel.
2.1
Suggestiveness of Photo Array
Regarding the photo array issue, the court of appeals found that the photographic
identification was properly admitted. (Docket # 12-2 at 4.) The court of appeals stated that to
determine whether an out-of-court photographic identification was properly admitted, the court must
first determine whether the defendant has shown the identification was impermissibly suggestive and
second, if the defendant meets that burden, whether the State has shown that the identification was
nevertheless reliable. (Id.) The court of appeals did not reach the second inquiry because it found the
identification was not impermissibly suggestive.
In so holding, the court of appeals considered Woods’ arguments that the photo array was
unduly suggestive because (1) prior to showing the employee the photo array, the detective told her
that a suspect had been identified by a fingerprint and (2) after the employee made her tentative
identification, the detective told her that the person she selected was the one matched to the
fingerprint. (Id.) The court of appeals rejected these arguments, finding that Woods did not claim that
the detective somehow singled out his photograph as being the one of the suspect identified from the
fingerprint prior to the employee selecting it, nor did he claim that the detective told the employee
that the identified suspect was part of the photo array when the array was presented. (Id. at 5.)
Further, the court of appeals found that because the employee could not identify Woods with one
hundred percent certainty, it was “difficult, if not impossible, to conclude a photo array or in-court
identification is impermissibly suggestive. . . .” (Id.)
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In Simmons v. United States, 390 U.S. 377, 384 (1968), on which Woods relies, the Supreme
Court found that convictions based on eyewitness identification at trial following a pretrial
identification by photograph will be set aside on that ground only if the photographic identification
procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of
irreparable misidentification. The court engages in a two-step analysis to determine whether the trial
court erred in allowing identification testimony from a photo array. United States v. Moore, 115 F.3d
1348, 1360 (7th Cir. 1997). The first question is whether the identification procedure used was
unduly suggestive. Id. If it is found unduly suggestive, the identification can still be admissible so
long as the testimony was reliable, given the totality of the circumstances. Id. The court looks at five
factors in assessing reliability: (1) the opportunity of the witness to view the event and the actor; (2)
the degree of the witness’ attention; (3) the accuracy of the witness’ description; (4) the witness’ level
of certainty; and finally, (5) the time elapsed between the crime and the identification. Neil v. Biggers,
409 U.S. 188, 199-200 (1972).
Woods relies on the Simmons Court’s statement that the chance of misidentification is
heightened if the police indicate to the witness that they have other evidence that one of the persons
pictured committed the crime. (Docket # Id. 13 at 9) (quoting Simmons, 390 U.S. at 383). Woods also
relies heavily on United States v. Goodman, 797 F.2d 468 (7th Cir. 1986), saying that the
“identification procedures used in [Goodman] are indistinguishable from the procedures used in the
photo identification of Mr. Woods.” (Docket # 13 at 10.) Although Woods is correct that the district
court in Goodman found the pretrial identification unconstitutionally suggestive, this issue was not
before the Seventh Circuit, who only addressed the admission of the in-court identification. Thus,
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this Court does not have the benefit of the rationale of the district court in Goodman as to why the
pretrial photospread was unconstitutionally suggestive. As such, Goodman is of limited value.
Woods does not challenge the procedure used by the Oak Creek Police Department in setting
up the photo array. Indeed, the procedure itself does not indicate the photo array was unduly
suggestive. The sheriff’s department, not the Oak Creek Police Department, chose the photographs
used in the photo array. (Docket # 12-12 at 129.) The sheriff’s department obtained Woods’
photograph, as well as photographs of other men with similar characteristics. (Id.) The trial judge
noted that the photographs of all of the men in the photo array were “remarkably similar.”
(Transcript of Suppression Hearing, Answer, Ex. J, Docket # 12-10 at 28.) The photographs were
placed in folders and shuffled so that the detective conducting the photo array did not know which
folder contained Woods’ picture. (Docket # 12-12 at 130, 133-34.)
Woods challenges the manner in which the photo array was presented to the store employee.
As stated above, Woods argues that the fact the detective told the employee that a suspect had been
identified by fingerprint prior to her viewing the photo array, and the fact that the detective told the
employee after she identified Woods’ photograph that she had chosen the photograph of the suspect,
made the photo array unduly suggestive. I disagree. Woods is correct that the chance of
misidentification is heightened if the police indicate to the witness that they have other evidence that
one of the persons pictured committed the crime. Simmons, 390 U.S. at 383. Although the employee
testified that she could not remember if she learned of the discovery of the fingerprint on the Tic Tac
box before or after she viewed the photographs (Docket # 12-11 at 97), the detective conducting the
photo array also testified that she told the employee that “evidence had come forward” before she
viewed the photographs (Docket # 12-13 at 25). Even assuming the employee knew a fingerprint had
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been found on a Tic Tac box before she viewed the photo array, this did not make the photo array
unduly suggestive. The employee testified at trial that the detective never told her that a photograph
of the suspect whose fingerprints were found was contained in the photo array. (Docket # 12-11 at
78-79.)
Although it was improper for the detective to confirm to the employee that she had chosen
the photograph of the suspect, this does not make the photo array per se suggestive. See, e.g., United
States v. Jarvis, 560 F.2d 494, 500 (2nd Cir. 1977) (although stating that the court did “not approve
the practice” of informing witnesses of the “correctness” or “incorrectness” of their pretrial
identifications, nevertheless upholding admission of eyewitness identification because of
corroborating palmprint evidence); United States v. Stamper, 91 Fed. Appx. 445, 462 (6th Cir. 2004)
(unpublished) (although stating that it was “certainly improper” for agent to convey to witness that
he had chosen the photograph of the suspect, finding that because the witness was informed after he
had identified the defendant, it could not have rendered the photographic identification unduly
suggestive). The detective testified at trial that she did not inform the employee that she had chosen
the photograph of their suspect until after she identified Woods. (Docket # 12-12 at 137-38.) Further,
another concern courts have expressed about police “confirming” a witness’ photo choice is that the
confirmation could taint a subsequent in-court identification because the witness may have the image
of the photograph in her head instead of recalling the image from memory. Swicegood v. Alabama, 577
F.2d 1322, 1329 (5th Cir. 1978) (finding that witness’ in-court identification could have been tainted
because the police officer remarked to the witness after the after line-up that the identified person was
the “suspect that we had”). As the Wisconsin Court of Appeals noted, even after the detective’s
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“confirmation,” the employee still could not identify Woods with one hundred percent certainty at
trial. Thus, the “confirmation” had no effect on the witness’ ability to identify Woods in court.
Because I agree with the court of appeals that the photo array was not unduly suggestive,
Woods has not shown that this argument was clearly stronger than the sufficiency of the evidence
argument, nor has he shown the issue may have resulted in a reversal of the conviction or an order
for a new trial.
2.2
Exclusion of Identification Under Wis. Stat. § 904.03
Woods also argues that appellate counsel should have addressed the trial counsel’s alternate
basis for suppression: Wis. Stat. § 904.03. Under that section, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice. Woods argues that the
witness’ identification was unreliable because she could not identify him with one hundred percent
certainty. He cites Neil v. Biggers, 409 U.S. 188 (1972) for support. However, what Woods
misunderstands is that the Biggers factors are only considered if the initial photo array was unduly
suggestive in order to determine if the identification is otherwise reliable. Id. at 199-200. Just because
the witness could not identify Woods with one hundred percent certainty does not provide a basis
for suppression of the identification.
As long as the photo array was not unduly suggestive, it is for the jury to determine the
ultimate weight to be given to the identification. See United States v. Alanis, 109 F.3d 1239, 1242 (7th
Cir. 1997) (“[I]n the absence of an improper out-of-court identification procedure, [defendant’s]
objection to the in-court identifications amounts to little more than a request that this court assume
the role of the jury. We are not inclined to indulge this role confusion.”); United States v. Clay, 165
F.3d 33, 1998 WL 847098, * 2 (7th Cir. 1998) (unpublished) (internal citations omitted) (“Indeed,
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it is the jury which determines the weight to give the in-court identification. A less-than-positive
identification may still be sufficient and reliable when considered with all other evidence; it is a
matter of factual argument for the jury.”). Woods had an opportunity to cross-examine the witness
who made the identification. Woods has not shown that the admission of the witness’ identification
was improper under Wis. Stat. § 904.03. As such, Woods has not shown appellate counsel was
ineffective for failing to raise this issue.
2.3
Fifth Amendment Argument
Finally, Woods argues that his appellate counsel should have raised the alleged violation of
his Fifth Amendment right against self-incrimination. Woods argues that his Fifth Amendment right
was violated when the prosecution elicited testimony from a detective that Woods’ interview with
police ended by Woods getting up and leaving the room, thereby improperly commenting on his
right to remain silent. (Docket # 13 at 15-16.)
The court of appeals, citing State v. Cooper, 2003 WI App 227, ¶ 19, 267 Wis. 2d 886, 672
N.W.2d 118, stated that the test for determining whether there has been an impermissible comment
on the defendant’s right to remain silent is whether the language used was manifestly intended or
was of such character that the jury would naturally and necessarily take it to be a comment on the
defendant’s right to remain silent. (Docket # 12-2 at 7.) The court of appeals went on to state that
the court must look at the context in which the statement was made in order to determine the
manifest intention that prompted it and its natural and necessary impact on the jury. (Id.)
Acknowledging that the entire transcript was not provided, the court of appeals found that “[a]s best
we can tell, the question on redirect was not ‘manifestly intended’ as a comment on Woods’ right
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to remain silent, but, rather, rebuttal against Woods’ claim that the detectives refused to allow
Woods to answer their questions.” (Id.)
Reviewing the complete transcript, the prosecution did not impermissibly comment on
Woods’ right to remain silent. During the direct examination of Detective Golombowski of the Oak
Creek Police Department, a tape was played of the Oak Creek Police Department’s interview with
Woods. (Docket # 12-13 at 9.) During this interview, Woods stated that he did not know where Oak
Creek was located. (Id. at 12.) On cross-examination, Woods’ attorney asked the detective if Woods
was cut off by the officers as he attempted to offer an explanation to the question of whether he had
ever been to Oak Creek. (Id. at 23.) Woods’ attorney asked this question a second time. (Id. at 27.)
He then ended his questioning. On re-direct, the State immediately picked this line of questioning
back up, asking “And then Mr. Woods, who got cut off, how did the conversation with Mr. Woods
end? Did you and Detective Mendola get up and leave the room?” (Id. at 27.) To which the detective
responded no, and stated that Woods left the room. (Id. at 27-28.) On re-cross, Woods’ attorney
repeatedly asked the detective about Woods’ statements to the officers about whether he had ever
been to Oak Creek. (Id. at 30-32.) Each time, the detective responded that they did not have an
opportunity to explore further whether Woods had ever been to Oak Creek because he left the room.
(Id.) On further re-cross, Woods’ attorney again stated that Woods ended the interview. (Id. at 33.)
During his closing argument, the prosecutor said:
State: . . . But again, he says, I don’t know even where Oak Creek is; and this notion
that he was cut off, again, a guy being interviewed by police can always end the
conversation. That in and of itself, but for Mr. Nistler to say you cut him off, you
cut him off, you cut him off, Well, guess what? He could have said at any point
whatever it was he wanted to say . . . .
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(Id. at 73.) During the defense’s closing argument, Woods’ attorney again mentions the fact that
Woods was “cut off” while he was trying to explain whether he had ever been to Oak Creek. (Id. at
85.) Woods’ attorney makes mention of this in response to the State’s argument that Woods denied
having ever been to Oak Creek. (Id.)
Thus, looking at the record in its entirety, language used by the State was not manifestly
intended or was not of such character that the jury would naturally and necessarily take it to be a
comment on the defendant’s right to remain silent. First, Woods’ counsel opened the door by making
the first comment on cross-examination as to Woods getting “cut off” by police. It was only in
response to this assertion that the State elicited testimony from the detective to rebut this fact by
stating that it was Woods who “cut off” the conversation. Although Woods argues that the detective
said Woods left the room nine times during her testimony (Docket # 13 at 16), all but one of the
citations Woods gives are in response to questions by Woods’ attorney. Second, it is clear from the
transcript that the State was not commenting on Woods stopping the interview in order to create the
impression that his silence indicates his guilt, but was trying to clarify the record as to who “cut off”
the conversation in the context of whether Woods had ever been to Oak Creek. Because there was
no violation of Woods’ Fifth Amendment right, he has not shown that this issue was clearly stronger
than the sufficiency of the evidence argument and has not shown that the issue may have resulted
in a reversal of the conviction or an order for a new trial.
In conclusion, Woods has not shown that the court of appeals’ decision on his ineffective
assistance of appellate counsel claim was contrary to, or involved an unreasonable application of
Strickland, nor has he shown that the court of appeals’ decision was based on an unreasonable
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determination of the facts in light of the evidence presented in the state proceeding. Thus, Woods
is not entitled to habeas relief on his ineffective assistance of appellate counsel claim.
3.
Constitutional Claims Based on Photo Array and Alleged Fifth Amendment Violation
Woods also brings his photo array and Fifth Amendment claims as independent
constitutional claims. The respondent argues that Woods cannot present his photo array and Fifth
Amendment challenges as stand alone constitutional claims because they were brought in the context
of a challenge to the effectiveness of appellate counsel. (Resp. Br. at 15, Docket # 15.) Woods argues
that both claims were raised in the court of appeals and a decision was given on the merits; thus,
both issues are stand alone constitutional claims. (Petitioner’s Reply Br. at 6, Docket # 16.) To assert
a claim in a federal habeas petition, a petitioner must have given the Wisconsin state courts a full and
fair opportunity to review them. Morrison v. Duckworth, 898 F.2d 1298, 1300 (7th Cir. 1990). When
a petitioner fails to give the state courts a full and fair opportunity to review his claims, a procedural
default occurs. Id. A petitioner can only bring defaulted claim in a federal habeas petition if he can
show cause and prejudice. Id.
Woods did not present his photo array and Fifth Amendment claims to the Wisconsin state
courts on direct review. However, Woods argues his appellate counsel was ineffective when he chose
not to pursue these claims. Counsel’s failure to raise a claim can serve as cause for a procedural
default only if counsel’s failure to do so constitutes ineffective assistance of counsel. See Murray v.
Carrier, 477 U.S. 478, 488–89 (1986); see also Franklin v. Gilmore, 188 F.3d 877, 883 (7th Cir. 1999)
(“Attorney error that constitutes ineffective assistance of counsel is cause to set aside a procedural
default.”). Because this Court has already determined that Woods’ appellate counsel was not
ineffective in failing to raise these issues on direct review, Woods cannot show cause for the
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procedural default. As such, the Court need not address the photo array and Fifth Amendment
claims as independent constitutional claims.
However, I recognize that other courts in this district have addressed the substance of claims
raised in Knight petitions without first analyzing cause for the default. See Searcy v. Clements, No. 09CV-382, 2012 WL 719002, * 3 (E.D. Wis. Mar. 5, 2012) (“[I]t is the conclusion of this court that
the filing of a petition for a writ of habeas corpus with the Wisconsin Supreme Court will be
sufficient to exhaust claims that remain unexhausted due solely to appellate counsel’s failure to
include them in the petition for review filed as part of a direct appeal of a conviction.”); McGee v.
Bartow, No. 06-CV-1151, 2007 WL 1062175, * 4 (E.D. Wis. Apr. 3, 2007) (“The fact that
[petitioner’s] attorney did not raise the issue on direct appeal is of no consequence since [petitioner]
presented the issue to the Wisconsin courts in the context of an ineffective assistance of counsel
claim”).
Accordingly, even examining the claims on the merits, Woods would not be entitled to
habeas relief. Woods must show that the state court decision was contrary to, or involved an
unreasonable application of, Supreme Court precedent or that the state court decision was based on
an unreasonable determination of the facts in light of the evidence presented in the state proceeding.
Regarding Woods’ photo array claim, the procedure for challenging pretrial identification procedures
under federal law mirrors the two-step analysis utilized by the Wisconsin Court of Appeals in
Woods’ Knight petition. See Neil v. Biggers, 409 U.S. 188, 198-200 (1972); McGowan v. Miller, 109 F.3d
1168, 1173 (7th Cir. 1997). Thus, the question is whether the Wisconsin Court of Appeals
unreasonably applied the applicable law or unreasonably determined the facts. For the reasons
discussed above, I have already determined that the photo array was not unduly suggestive. Thus,
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Woods has not shown that the court of appeals unreasonably applied the law or unreasonably
determined the facts as to his photo array claim. Thus, this claim fails on the merits.
Regarding his Fifth Amendment claim, the court of appeals found that the prosecution’s
question on redirect was not “manifestly intended” as a comment on Woods’ right to remain silent
and it did not appear that the jury would have “naturally and necessarily” taken the prosecution’s
question as a comment on Woods’ right to remain silent. The court of appeals’ finding does not run
afoul of Supreme Court precedent that states that a prosecutor is prohibited from suggesting to the
jury that it may treat the defendant’s silence as substantive evidence of guilt. See United States v.
Robinson, 485 U.S. 25, 32 (1988); see also Bergmann v. McCaughtry, 65 F.3d 1372, 1376-77 (7th Cir.
1995) (stating that as a predicate to relief based on the right to remain silent, the defendant must
establish a reference to his silence, which is determined by deciding whether it was the prosecutor’s
manifest intention to refer to the defendant’s silence or the remark was of such a character that the
jury would naturally and necessarily take it to be a comment on the defendant’s silence).
Further, Woods has not shown the court of appeals unreasonably applied the law or
unreasonably determined the facts in light of the evidence presented. As discussed above, it is clear
from the transcript that the State was not commenting on Woods stopping the interview in order to
create the impression that his silence indicates his guilt, but was trying to clarify the record as to who
“cut off” the conversation in the context of whether Woods had ever been to Oak Creek. This is a
proper application of Supreme Court law to the facts of the case. See Robinson, 485 U.S. at 32
(“[W]here as in this case the prosecutor’s reference to the defendant’s opportunity to testify is a fair
response to a claim made by defendant or his counsel, we think there is no violation of the
privilege.”). As such, Woods’ Fifth Amendment claim fails on the merits.
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CERTIFICATE OF APPEALABILITY
According to Rule 11(a) of the Rules Governing § 2254 Cases, the court must issue or deny
a certificate of appealability “when it enters a final order adverse to the applicant.” A certificate of
appealability may issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing of the denial of a
constitutional right, the petitioner must demonstrate that “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.’” Slack v. McDaniel,
529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, and n. 4).
When issues are resolved on procedural grounds, a certificate of appealability “should issue
when the prisoner shows, at least, that jurists of reason 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.” Id. Each showing is a
threshold inquiry; thus, the court need only address one component if that particular showing will
resolve the issue. Id. at 485.
In this case, reasonable jurists would not find the decision to deny the petition as to Woods’
sufficiency of the evidence and ineffective assistance of counsel claims debatable or wrong. First, as
to the sufficiency of the evidence claim, it is not debatable the Wisconsin Court of Appeals identified
the correct governing legal rule in citing Poellinger, which pronounces a state law standard that is the
functional equivalent to Jackson. Further, it is not debatable that the court of appeals did not
unreasonably apply the Jackson rule to the facts of Woods’ case. As to the ineffective assistance of
appellate counsel claim, it is not debatable the Wisconsin Court of Appeals identified the correct
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governing legal rule in citing state law cases that articulate the Strickland standard. Further, it is not
debatable that the court of appeals reasonably applied the Strickland standard to the facts of Woods’
case.
Regarding the denial of Woods’ photo array and Fifth Amendment claims on the grounds
of procedural default, jurists of reasons would not find it debatable that Woods’ petition does not
state a valid claim of the denial of a constitutional right.
For these reasons, I will deny Woods a certificate of appealability. Woods retains the right
to seek a certificate of appealability from the Court of Appeals pursuant to Rule 22(b) of the Federal
Rules of Appellate Procedure.
ORDER
NOW, THEREFORE, IT IS ORDERED that the petitioner’s petition for a writ of
habeas corpus (Docket # 1) be and hereby is DENIED.
IT IS FURTHER ORDERED that this action be and hereby is DISMISSED.
IT IS ALSO ORDERED that a certificate of appealability shall not issue.
FINALLY, IT IS ORDERED that the Clerk of Court enter judgment accordingly.
Dated at Milwaukee, Wisconsin this 24th day of February, 2014.
BY THE COURT
s/Nancy Joseph
NANCY JOSEPH
United States Magistrate Judge
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