Tatum v. Foster

Filing 25

ORDER DISMISSING CASE signed by Judge Rudolph T. Randa on 9/24/2014. 14 Petitioner's MOTION for Hearing/Sanctions/Contempt/Extension of Time DENIED; 18 Petitioner's MOTION for Judgment on the Pleadings/More Definite Statement DENIED; [2 2] Petitioner's MOTION for Sanctions DENIED; 24 Petitioner's MOTION to Appoint Counsel DENIED. Petition for writ of habeas corpus DENIED. The Court declines to issue a certificate of appealability. (cc: all counsel, via US mail to Robert Tatum at Wisconsin Secure Program Facility)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ROBERT L. TATUM,
Petitioner,
-vs-

Case No. 13-C-1348

MICHAEL MEISNER, Warden,
Columbia Correctional Institution,
Respondent.
DECISION AND ORDER

After a jury trial, Robert L. Tatum was found guilty of two counts of
first-degree intentional homicide and sentenced to life in prison without
the possibility of parole. Tatum now petitions for relief under 28 U.S.C. §
2254.
A writ of habeas corpus will not issue unless the state-court‟s
adjudication “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 “resulted in a decision that
was based on an unreasonable determination of the facts” in light of the
evidence before the state court. § 2254(d)(1)-(2). The standard set forth in §
2254(d)(1) “is a strict one.” Taylor v. Grounds, 721 F.3d 809, 817 (7th Cir.
2013). “[A]n unreasonable application of federal law is different from an

incorrect application of federal law.” Williams v. Taylor, 529 U.S. 362, 410
(2000) (emphasis in original). Tatum 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.” Harrington v. Richter, --- U.S. ---, 131 S. Ct.
770, 786-87 (2011). Under § 2254(d)(2), a decision “involves an
unreasonable determination of the facts if it rests upon fact-finding that
ignores the clear and convincing weight of the evidence.” Goudy v.
Basinger, 604 F.3d 394, 399-400 (7th Cir. 2010). The Court presumes that
the state courts‟ factual determinations are correct unless rebutted by clear
and convincing evidence. § 2254(e)(1).
First, Tatum complains that the trial court denied his constitutional
right to self-representation. As the court of appeals explained, Tatum “fails
to recognize the difference between the trial court‟s determination that
Tatum was competent to stand trial, but not able to represent himself.”
ECF No. 15-2, at 7, State of Wisconsin v. Tatum, No. 2011AP2439-CR (Wis.
Ct. App. Jan. 29, 2013). In Wisconsin, “there is a higher standard for
determining whether a defendant is competent to represent oneself than
for determining whether a defendant is competent to stand trial.” State v.
Klessig, 564 N.W. 2d 716 (Wis. 1997). Here, the trial court determined that
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Tatum “did not demonstrate an understanding as to the implications of
self-representation.” ECF No. 15-2, at 7. Such an approach, according to
the Seventh Circuit, does not violate clearly established federal law as
declared by the Supreme Court. Brooks v. McCaughtry, 380 F.3d 1009,
1012-13 (7th Cir. 2004) (“Because being competent to stand trial and
having waived the right to counsel do not require the same information,
and because the former competence does not imply an effective waiver in
all cases, we do not think that Wisconsin‟s approach violates the rule of
Godinez [v. Moran, 509 U.S. 389 (1993)]”).
Second, Tatum argues that he was denied his right to a speedy trial,
but as the court of appeals observed, Tatum “[did] not argue a violation of
his constitutional rights, . . .” ECF No. 15-2, at 8. Instead, Tatum focused
his argument on Wis. Stat. § 971.10. Such a claim is not cognizable in
federal habeas corpus. Lechner v. Frank, 341 F.3d 635, 642 (7th Cir. 2003).
Even if Tatum had asserted a constitutional claim, it likely would have
failed because much of the delay was caused by Tatum‟s own
intransigence—e.g., firing multiple attorneys, and the need for a
competency examination. United States v. White, 443 F.3d 582, 589 (7th
Cir. 2006) (courts examine “whether the government or the criminal
defendant is more to blame for [the] delay”).
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Third, Tatum argues that his trial counsel rendered ineffective
assistance. Tatum failed to raise this claim in state court. Perruquet v.
Briley, 390 F.3d 505, 514 (7th Cir. 2004) (discussing related doctrines of
exhaustion and procedural default). Tatum‟s claims about his attorney‟s
performance lack merit in any event. § 2254(b)(2) (“An application for a
writ of habeas corpus may be denied on the merits, notwithstanding the
failure of the applicant to exhaust the remedies available in the courts of
the State”). The same can be said for Tatum‟s final claim, that he was
denied his constitutional right to an impartial decision-maker: Tatum
failed to exhaust the claim, resulting in a likely procedural default, and it
is frivolous even if it were necessary to consider it. The Court agrees with
the following characterization in the respondent‟s answer: “[Tatum‟s]
argument can be summarized as follows: „because the state courts ruled
against me, it follows that they were constitutionally unfair and biased
against me.‟”
In connection with this Order, the Court must determine whether to
issue or deny a certificate of appealability. Rule 11(a), Rules Governing
Section 2254 Cases. Tatum failed to make a “substantial showing” that
“jurists of reason could disagree with the district court‟s resolution of his
constitutional claims or that jurists could conclude the issues presented are
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adequate to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003).
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
1.

Tatum‟s emergency motion for a hearing [ECF No. 14] is

DENIED;
2.

Tatum‟s motion for judgment on the pleadings [ECF No. 18] is

DENIED;
3.

Tatum‟s motion for sanctions [ECF No. 22] is DENIED;

4.

Tatum‟s motion to appoint counsel [ECF No. 24] is DENIED;

5.

Tatum‟s petition for a writ of habeas corpus is DENIED. The

and

Court will not issue a certificate of appealability. The Clerk of Court is
directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 24th day of September, 2014.
BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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