Treadwell v. Baenen

Filing 30

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 6/22/2017. 1 Petitioner's petition for writ of habeas corpus (2254) DENIED. The court declines to issue a certificate of appealability. (cc: all counsel, via mail to Alfonzo Treadwell at Green Bay Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ALFONZO C. TREADWELL,
Petitioner,
Case No. 13-CV-1409-PP
v.
BRIAN FOSTER,
Respondent.

DECISION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS (DKT. NO. 1)

Petitioner Alfonzo Treadwell, representing himself, filed a petition for a
writ of habeas corpus under 28 U.S.C. §2254, seeking relief from the sentence
imposed as a result of his 2010 conviction for first-degree reckless homicide,
party to a crime. Dkt. No. 1. The parties have briefed the petition. Below, the
court considers the petitioner’s challenge to the validity of his guilty plea and
his challenge to the sufficiency of the evidence, concludes that the challenges
are without merit, and dismisses the petition.
I.

FACTUAL BACKGROUND
A.

State Proceedings

The petitioner was charged in Milwaukee County with one count of firstdegree reckless homicide and two counts of first-degree recklessly endangering
safety with the use of a dangerous weapon, as a party to a crime. Dkt. No. 18-4

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at 3. The Wisconsin Court of Appeals recounted the facts that gave rise to the
charges:
Several days before the homicide, someone fired more than
twenty shots into [Omar] Smith’s home. Smith later learned
the “Deuce Squad” was responsible. [The petitioner], a
friend of Smith’s, was angered by the shooting because he
could have been at Smith’s house when it happened. On the
day of the homicide, [the petitioner] was at Smith’s home
when Smith came up to him and said, “Come on with the
heat.” Smith intended to go scare the “Deuce Squad”
members. [The petitioner] went willingly with Smith, arming
himself with a .45-caliber handgun while Smith carried a
9mm semiautomatic handgun.
[The petitioner] and Smith got into the back seat of a car
driven by a third person. As they traveled, [the petitioner]
loaded eight bullets into his weapon and cocked it so that
he could be ready to fire when he got out of the car. When
they arrived at their destination, [the petitioner] immediately
got out, firing the first shots in the incident toward a house
where people were standing outside. [The petitioner] said he
saw “Ricky” standing nearby and fired two or three shots at
him, plus four or five shots at someone in a black car in
front of the house. When his gun was empty, [the petitioner]
heard two more gunshots but, now knowing their source, he
fled the scene. Two bystanders were injured and a third was
killed, evidently by one of Smith’s 9mm bullets. Eight .45caliber casings were recovered from the scene.
Dkt. No. 18-4 at 2.
The petitioner and the state conducted plea negotiations, which resulted
in the petitioner pleading guilty to the homicide charge, and the state
dismissing the reckless-endangerment charges and agreeing to recommend no
more than twenty-five years confinement. Dkt. No. 18-4 at 3. The plaintiff pled
guilty, and on February 12, 2010, the Milwaukee County Circuit Court entered
a judgment of conviction against the petitioner for first-degree reckless
homicide by use of a dangerous weapon, as a party to the crime. Dkt. No. 18-1
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at 1. The court sentenced the plaintiff to serve twenty-five years of initial
confinement and fifteen years of extended supervision. Id.
At the plea colloquy, the circuit “had the benefit of a plea
questionnaire/waiver of rights form in which [the petitioner] indicated he had
completed the ninth grade and lacked a high school diploma or equivalent.”
Dkt. No. 18-4 at 5. The circuit court asked the petitioner whether he had
reviewed this form with his counsel, understood it, and thought the answers
were true—the petitioner answered each question in the affirmative. Id. The
circuit court also asked the petitioner whether he had used any drugs or
alcohol in the preceding twenty-four hours. Id. To establish that the petitioner
understood his party-to-a-crime liability, the circuit court explained each
element of the offense (including the elements of party-to-a-crime liability); the
petitioner confirmed that he understood those elements. Id. at 5-6. The circuit
court also referenced the fact that the petitioner’s lawyer had attached to the
plea questionnaire the jury instructions for the offenses, which bore the
petitioner’s signature. The court asked whether the petitioner had understood
these documents when he’d gone over them with his lawyer, and the petitioner
said that he had understood. Id. at 6. Finally, because the petitioner, his
lawyer and the state all agreed that the criminal complaint supplied an
accurate factual basis for the plea, the circuit court relied on the complaint to
determine that the plea was factually supported. Id. at 6-7.
After he was sentenced, the petitioner (now representing himself) filed a
post-conviction motion seeking to withdraw his plea or, alternatively, asking to
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be resentenced. Id. at 3. He argued, in part, that the circuit court had not
assessed his level of education and general comprehension to determine his
ability to understand the plea process, “and that this somehow meant that he
did not understand how he aided and abetted Smith in a reckless homicide.”
Id. The circuit court denied the motion. Id. The Wisconsin Court of Appeals
affirmed the circuit court’s ruling. Id. at 1. The Wisconsin Supreme Court
denied the petition for review. Dkt. No. 18-7.
2.

Federal Proceedings

The petitioner then filed this habeas petition. Dkt. No. 1. In the petition,
he argued that the circuit court violated Wis. Stat. ¶971.08 when it took his
plea, id. at 6; that the circuit court did not “[d]etermine the extent” of his
education “and general comprehension so as to assess” his capacity to
understand the issues at the plea hearing, id. at 7; that the circuit court did
not alert him “to the possibility that an attorney may discover defense or
mitigating circumstances that would not be apparent to a layman such as” the
petitioner, id. at 8; and that the court did not ‘[e]nsure] his understanding “of
the nature of the crime with which he [was] charged and the range of
punishment to which he [was] subjecting himself to by entering a plea,” id. at
9.
At the screening stage, Judge Griesbach (then the judge assigned to the
case) concluded that the petitioner’s arguments boiled down to two claims: that
he did not enter his plea knowingly and voluntarily, and that his attorney was
ineffective. Dkt. No. 12 at 2. Judge Griesbach found, however, that the
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petitioner had not exhausted his state remedies as to an ineffective assistance
claim. Id. at 3. Judge Griesbach gave the petitioner the opportunity to either
ask him to stay the habeas proceeding so that he could go to state court to
exhaust on the ineffective assistance claim, or go forward only on the claim
that his plea was not voluntary. Id. at 4. The petitioner responded that he
wanted to go forward only as to the claim he exhausted in state court: “whether
the plea was made knowingly, intelligently and voluntarily and whether the
state chose to unconstitutionally apply liability for [the petitioner] being a party
to the crime of 1st-degree reckless homicide.” Dkt. No. 13 at 2. The petitioner
chose not to proceed on the ineffective-assistance-of-counsel claim.
II.

STANDARD
To prevail on a petition for a writ of habeas corpus, the petitioner must

show that he is in custody in violation of the Constitution, laws or treaties of
the United States. 28 U.S.C. §2254(d). If the state appellate court ruled on the
merits of the claims, then the petitioner must go a step further, and show that
his detention is the result of a state court decision that was (a) “contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or (b) “based on an
unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” Id.; see Gonzales v. Mize, 565 F.3d 373, 379 (7th
Cir. 2009) (“We review the decision of the last state court that substantively
adjudicated each claim.”). This standard is highly deferential to state courts.
Harrington v. Richter, 562 U.S. 86, 101 (2011). In order for a petitioner to
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prevail on a habeas claim, the state appellate court’s ruling must be
“objectively unreasonable, not merely wrong; even clear error will not suffice.”
White v. Woodall, __ U.S. __, 134 S. Ct. 1697, 1702 (2014) (quoting Lockyer v.
Andrade, 538 U.S. 63, 75-76 (2003)(internal quotations omitted)). The ruling
must have been “so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington, 562 U.S. at 103.
III.

DISCUSSION
A.

The Petitioner’s Arguments

In his brief in support of the petition, the plaintiff first argues that the
state conceded in its appellate brief in state court that the circuit court judge
did not expressly ask the petitioner about his educational history. Dkt. No. 23
at 17. He indicates that instead, the judge relied on the plea questionnaire,
which stated that the petitioner had a ninth-grade education. Id. The petitioner
filed a copy of the plea questionnaire; in the field for age, someone has
handwritten “20,” and in the field for schooling, someone has handwritten “9th
grade,” and scratched through the word “years” before the words “of schooling.”
Dkt. No. 2-4 at 1. The petitioner states in his brief that “it later turned out that
while the written questionnaire listed a completed 9th-grade education, [the
petitioner] actually had a 5th-grade reading comprehension level.” Id. He
provides no support for this assertion.
Next, the petitioner challenges the Court of Appeals’ conclusion that
because the circuit court judge asked about drugs or alcohol, it made sure that
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the petitioner understood what was going on. Dkt. No. 23 at 17. The petitioner
claims that an inquiry into whether one has taken drugs or alcohol in the
twenty-four hours before a plea “is woefully superficial and perfunctory.” Id.
The petitioner says (without providing any supporting evidence) that he stated,
“I ain’t understand that,” and claims that this statement shows that he did not
understand what was going on during the plea colloquy. Id. at 18.
The respondent attached to his response to the petition a copy of the
brief that the petitioner had filed in the state appeals court. Dkt. No. 18-2. In
that brief, the petitioner appears to have quoted extensively from what he
indicates was the plea colloquy. Id. at 11. Because neither party provided this
court with a transcript of the plea colloquy, the court does not know whether
the petitioner’s quoted language is accurate. Assuming for the moment that it
was, however, the petitioner quoted the following:
THE COURT: Has anyone made – Before I get to that; in
addition, the other rights that you give up are out-lined in
the Plea Addendum that you signed, and those are the right
to challenge the evidence, such as the constitutionality of
the police evidence, and your right to give up whatever
defenses you might have had to this. Do you understand
you give those up as well?
DEFENDANT: I ain’t understand that.
THE COURT: You didn’t understand that?
DEFENDANT: No. . . .
Id. at 12. The appellate brief indicates that at this point in the proceedings, the
petitioner had explained to the circuit court that he had tried to get his lawyer
to explain to him how he could be guilty of killing someone when the evidence
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showed that it was Smith, not the petitioner, who’d shot the victim. Id. He
claims to have told the circuit court, “I understand, but I don’t understand.” Id.
at 13.
Third, the plaintiff argues that he indicated in the state proceedings that
he did not understand that he could be found guilty of “causing” someone’s
death under an aiding and abetting theory. Id. He goes into some detail about
how he did not provide Smith with the murder weapon or the bullets, did not
use the murder weapon himself, did not give Smith a ride to the scene of the
crime, and wasn’t accountable for Smith’s acts. Id. at 19. The petitioner argues
that his case “resembles” a case in which he would be “actually innocent” of
“causing the death of another human being” under an aiding-and-abetting or
party-to-a-crime theory. Id. at 21. The petitioner devotes a good deal of his brief
to his argument that the state was wrong to charge him with homicide under
an aiding-and-abetting theory. His brief reads as though he is contesting the
sufficiency of the evidence to support his conviction under an aiding-andabetting theory.
Finally, the petitioner challenges the sentence that the state court
imposed. Id. at 26-28. He argues that the state court did not provide a
sufficient reason for sentencing him to forty years, and that the sentence
violated the Eighth Amendment because it was “grossly disproportionate” to his
level of culpability. Id. at 26.

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B.

The Respondent’s Arguments

In his opposition brief, the respondent argues that the court of appeals
directly addressed the petitioner’s claim that the state court had not considered
his educational level. Dkt. No. 25 at 10. The respondent asserts that the
petitioner has identified no constitutional requirement that a court “personally
question” a defendant about his educational level in order to take a plea. Id.
The respondent does not address the fact that Wisconsin’s plea statute—Wis.
Stat. ¶971.08—does not explicitly require a court to ask about a defendant’s
educational background. He does mention Federal Rule of Criminal Procedure
11, noting that a now-overruled state court case, Ernst v. State, 43 Wis. 2d 661
(1969), had required state courts to follow the procedures laid out in that rule.
Dkt. No. 25 at 11. While Rule 11 does not require a federal court to enquire as
to a defendant’s educational background either, the respondent points out that
the Seventh Circuit has held that violating one of Rule 11’s requirements does
not necessarily, by itself, warrant habeas relief. Id. (citing, e.g., Morales v.
Boatwright, 580 F.3d 653, 662-63 (7th Cir. 2009)).
The respondent also argues that the petitioner has failed to show how
the circuit court’s failure to directly ask him his educational level, rather than
relying on the plea questionnaire, shows that he did not enter his plea
knowingly, voluntarily and intelligently. Id. at 13. The respondent also
emphasizes that the court asked the petitioner if he understood all sorts of
things, and that the petitioner answered in the affirmative to most of those
questions. Id. at 14.
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Similarly, the respondent disputes the petitioner’s argument that the
court did not make sure that he understood the factual basis of the offense, or
the elements. Id. at 15. The respondent points out numerous instances in
which the court did ask such questions, as well as pointing out that the court
asked the petitioner whether he’d reviewed the jury instructions and
understood them. Id. The respondent opines that what the petitioner really
seeks to argue is that he is not guilty of the offense to which he pled guilty, and
the respondent urges the court to find otherwise. Id. at 15-16. The respondent
points out that in the case on which the petitioner relies—Fagan v.
Washington, 942 F.2d 1155 (1991)—the Seventh Circuit overturned a guilty
verdict that resulted from a trial, whereas in this case, the petitioner pled guilty
to the crime he now argues the facts did not support. Id. at 17.
As to the petitioner’s argument that the circuit court unconstitutionally
applied the party-to-a-crime statute to his case, the respondent points out that
the petitioner did not raise this claim in his petition; he asserted it for the first
time in his brief. Id. at 18-19. Second, the respondent argues that the
petitioner procedurally defaulted on this claim, because the appeals court
found that it was underdeveloped. Id. at 19.
Finally, the respondent argues that the court should not consider the
petitioner’s challenge to his sentence, because he did not raise it in his
petition. Id. at 22. He also argues that the petitioner has failed to state a
violation of due process or an Eighth Amendment violation regarding his
sentence. Id. at 22-23.
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C.

The Petitioner’s Reply

In his reply, the petitioner returns to his arguments that there was not
sufficient evidence to show that he did anything to cause the victim’s death.
Dkt. No. 27 at 3. He states that “the entire case turns on whether [he] aided
and abetted Omar Smith” in committing the homicide. Id. at 7. He spends most
of his reply brief arguing that he did not aid and abet his co-defendant, and
therefore, that his plea was not valid. Id.
D.

The Court’s Analysis
1.

Whether the Plea was Knowing and Voluntary

The Seventh Circuit has noted that “[i]t is not easy to vacate a guilty plea
in a collateral proceeding . . . .” United States v. Torzala, 545 F.3d 517, 521
(7th Cir. 2008). To prevail on his claim that the state appeals court erred in
finding his plea valid, the petitioner must show that the appellate court’s
decision was (a) “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the
United States,” or (b) “based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” 28 U.S.C. §2254.
“It is beyond dispute that a guilty plea must be both knowing and
voluntary.” Parke v. Raley, 506 U.S. 20, 28 (1992). A guilty plea “represents a
voluntary and intelligent choice among the alternative courses of action open to
the defendant.” Id. at 29. “That is so because a guilty plea constitutes a waiver
of three constitutional rights: the right to a jury trial, the right to confront one’s
accusers, and the privilege against self-incrimination.” Id. (citing Boykin v.
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Alabama, 395 U.S. 238, 242 (1969)). Thus, a plea is voluntary and knowing if
“entered by one fully aware of the direct consequences.” Brady v. United States,
397 U.S. 742, 755 (1970) (citing Shelton v. United States, 246 F.2d 571, 572
n.2 (5th Cir. 1957)). “The voluntariness of [a defendant’s] plea can be
determined only by considering all of the relevant circumstances surrounding
it.” Id. at 749.
Under Wisconsin law, a court must do the following before accepting a
guilty plea:
(a) Address the defendant personally and determine that the
plea is made voluntarily with understanding of the nature of
the charge and the potential punishment if convicted.
(b) Make such inquiry as satisfies it that the defendant in fact
committed the crime charged.
(c) Address the defendant personally and advise the defendant
as follows: “If you are not a citizen of the United States of
America, you are advised that a plea of guilty or no contest for
the offense with which you are charged may result in
deportation, the exclusion from admission to this country or
the denial of naturalization, under federal law.”
(d) Inquire of the district attorney whether he or she has
complied with s. 971.095 (2).
Wis. Stat. §971.08.
In affirming the circuit court, the state appellate court concluded that
the petitioner had failed to “sufficiently identify defects in the plea colloquy.”
Dkt. No. 18-4 at 5. The petitioner had argued that the circuit court did not
appropriately (1) assess his capacity to understand issues at the hearing
(required by Wis. Stat. §971.08(1)(a)), (2) establish his understanding of the
nature of the crime (also required by Wis. Stat. §971.08(1)(a)), and (3) ascertain
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whether a factual basis existed to support the plea (not precisely what Wis.
Stat. §971.08(1)(c) requires). Id. at 4-5.
The appellate court determined that the circuit court’s inquiry into
whether the petitioner reviewed a standard form detailing his educational
history, the truthfulness of this form, and the petitioner’s affirmative responses
were adequate to allow the court to assess his capacity to understand issues.
Id. at 5. The appellate court also noted that the circuit court had asked the
petitioner about his consumption of alcohol or drugs in the past twenty-four
hours, to confirm his comprehension. Id. The appellate court then found that
the circuit court had ensured that the petitioner understood the nature of the
crime in two ways: (1) it had explained each element of the offense, and the
petitioner confirmed his understanding following this explanation; and (2) the
petitioner had signed a copy of the jury instructions, which also explained the
offense elements. Id. at 5-6. The circuit court further confirmed that the
petitioner understood these documents when he signed them. Id. at 6. Finally,
to ascertain whether a factual basis supported the plea, the circuit court had
asked both defense counsel and the state whether the facts supported the plea;
both had agreed that they did. Id. The court asked the petitioner if he read the
complaint and if the facts were true, to which the petitioner answered “yes.” Id.
The appellate court concluded that the petitioner’s post-conviction motion
failed to identify any deficiency in the plea colloquy. Id. at 7.
There is no evidence that the state appellate court’s ruling regarding the
petitioner’s educational level and ability to understand was “so lacking in
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justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Harrington,
562 U.S. at 103. The appellate court considered the relevant circumstances of
the plea, including the petitioner’s own admissions that he understood the plea
and that he was not under the influence of any drugs or alcohol. Dkt. No. 18-4
at 5-7. Although the appellate court based its assessment on Wisconsin law, its
analysis was not contrary to federal law. See Early v. Packer, 537 U.S. 3, 8
(2002) (noting that §2254(d) does not require citation to U.S. Supreme Court
cases, or even an awareness of them, “so long as neither the reasoning nor the
result of the state-court decision contradicts them”). The plaintiff has not
demonstrated that he is entitled to habeas relief on this claim.
2.

Whether the Evidence Was Sufficient to Prove Party-to-a-Crime
Liability

In his brief, the petitioner argued that by finding him guilty of being a
party to the crime of reckless homicide (and not allowing him to withdraw his
guilty plea to that charge), the state court made a decision that was contrary to
clearly established federal law. Dkt. No. 23 at 22. It is not clear to the court
what clearly-established law the petitioner believes the state court violated. The
petitioner’s claims have to do with his view that he wasn’t a party to a crime—
that the elements for party-to-a-crime liability under Wis. Stat. §939.05 were
not present. Id. Indeed, it was not clear to the state court of appeals, either;
that court did not rule on this argument, because “[the petitioner] [did] not
identify precisely what the unconstitutional application [was] . . . .” Dkt. No.
18-4 at 7-8.
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The respondent correctly points out that the petitioner did not list this as
one of the grounds for relief in his federal habeas petition. Dkt. No. 25 at 1819. Judge Griesbach did not have the ability to screen that claim, or to
determine whether the petitioner had exhausted his remedies on that claim. As
the respondent correctly points out, a federal court does not have an obligation
to address an issue that a petitioner does not raise. Toro v. Fairman, 940 F.2d
1065, 1066-67 (7th Cir. 1991).
Perhaps more to the point, the petitioner gave up the “ability to hold the
government to its proof when he entered his guilty plea.” Torzala, 545 F.3d at
524 (citing United States v. Broce, 488 U.S. 563, 571 (1989)). The Seventh
Circuit has held that “the Constitution ‘does not require the establishment in
all cases of a factual basis for a guilty plea.’” Id. (quoting Higgason v. Clark,
984 F.2d 203, 208 (7th Cir. 1993)). The state court used the facts alleged in the
complaint as the factual basis for the plea, and all parties agreed that those
facts were sufficient. It is not impossible to find guilt from those facts, and the
fact that the petitioner now questions whether they were sufficient is not a
sufficient basis for this court to vacate his guilty plea on collateral attack.1
The petitioner has not shown that the appellate court’s analysis was
unreasonable or that the court’s adjudication of the claim resulted in a

The respondent also argued that the petitioner had procedurally defaulted on
this claim, because the state court of appeals was unable to rule on the claim
because the petitioner had not fully developed it. Dkt. No. 25 at 19, citing Dkt.
No. 18-4 at 7-8. Because the petitioner waived this claim, the court will not
analyze the procedural default argument.
1

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decision based on an unreasonable determination of the facts. The petitioner is
not entitled to habeas relief on this ground.
3.

Whether the State Court Provided Sufficient Justification for the
Sentence It Imposed

Finally, the petitioner argued in his brief (not his petition) that the state
court did not provide sufficient justification for the sentence it imposed. The
respondent again points out that the court does not have to reach this claim,
because the petitioner did not raise it in his petition. Dkt. No. 25 at 22. Even if
the court were to reach this issue, it would deny habeas relief. As another
judge in this district has held, “[a]ny theoretical failure to apply Wisconsin
sentencing standards is simply outside the realm of habeas relief.” Gallion v.
Boatwright, Dkt. No. 07-C-798, 2009 WL 310904 at *7 (E.D. Wis. Feb. 6, 2009)
(citations omitted). The petitioner is not entitled to habeas relief on this ground.
IV.

CERTIFICATE OF APPEALABILITY
Under Rule 11(a) of the Rules Governing Section 2254 Cases, the court

must consider whether to issue a certificate of appealability. A court may issue
a certificate of appealability only if the applicant makes a substantial showing
of the denial of a constitutional right. See 28 U.S.C. §2253(c)(2). The standard
for making a “substantial showing” is whether “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) (internal quotation marks omitted).

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The court concludes that its decision to not to grant the writ is neither
incorrect nor debatable among jurists of reason. The state appellate court made
a reasonable determination and that determination is consistent with federal
law.
V.

CONCLUSION
The court DENIES the petitioner’s §2254 petition. Dkt. No. 1. The court

DECLINES to issue a certificate of appealability. The court ORDERS that the
petition is DISMISSED.
Dated in Milwaukee, Wisconsin this 22nd day of June, 2017.
BY THE COURT:

________________________________________________

HON. PAMELA PEPPER
United States District Judge

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