Powell v. Smith
Filing
17
DECISION AND ORDER signed by Judge Lynn Adelman on 7/20/18. IT IS ORDERED that this petition for a writ of habeas corpus is DENIED. The Clerk of Court shall enter judgment accordingly. IT IS FURTHER ORDERED, pursuant to Rule 11 of the Rules Governing § 2254 Cases, that a certificate of appealability is DENIED. (cc: all counsel)(jad)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RICHARD A. POWELL,
Petitioner,
v.
Case No. 14-C-1360
JUDY P. SMITH, Warden,
Oshkosh Correctional Institution,
Respondent.
DECISION AND ORDER
In 2009, Richard Powell pleaded no contest in state court to five counts of
homicide by intoxicated use of a vehicle. Wis. Stat. § 940.09(1)(a). The judge found
Powell guilty and sentenced him to five years in state prison and three years of
extended supervision on each count, to be served consecutively. Months later, Powell
moved for a sentence modification arguing that the judge sentenced him based in part
on inaccurate information. The judge agreed but concluded that he would have imposed
the same sentence regardless of the inaccurate information before him at sentencing.
He denied Powell’s motion. The Wisconsin Court of Appeals affirmed that decision
holding that, although the sentencing judge relied on inaccurate information, “there was
no reasonable probability that [his] error . . . contributed to Powell’s sentence,” so “[t]he
error was harmless.” State v. Powell, No. 2012AP327, slip op. at 4 (Wis. Ct. App. Apr. 3,
2013). The Wisconsin Supreme Court denied Powell’s petition for review.
Powell asserts a violation of his constitutional due-process right to be sentenced
based on accurate information only and petitions this court for a writ of habeas corpus
under 28 U.S.C. § 2254 seeking resentencing by a new judge. Because Powell is a
state prisoner seeking relief on a “claim that was adjudicated on the merits in State
court,” I can only grant him habeas relief if he shows that the decision of the Wisconsin
Court of Appeals (1) “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) “was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” § 2254(d).
I. Contrary to Clearly Established Federal Law
Powell argues that the state court’s decision was contrary to the Supreme
Court’s decision in United States v. Tucker, 404 U.S. 443 (1972), which similarly
concerned the use of inaccurate information at sentencing. A state court decision is only
“contrary to” clearly established federal law for purposes of relief under § 2254(d) “if the
state court arrives at a conclusion opposite to that reached by [the] Court on a question
of law” or “confronts facts that are materially indistinguishable from a relevant Supreme
Court precedent and arrives at a result opposite to [that of the Court].” Williams v.
Taylor, 529 U.S. 362, 405 (2000). Accordingly, I must consider the Court’s legal
conclusions in Tucker, as well as the facts and result of that case.
Forrest Tucker was charged with armed bank robbery and, in 1953, was tried in
federal court before a jury, which found him guilty. Tucker testified at trial and, on crossexamination, acknowledged three prior felony convictions. At sentencing, the district
judge referred to Tucker’s prior convictions and sentenced him to 25 years in prison, the
maximum term for the crime then authorized by federal law.
Years later, two of Tucker’s prior convictions were deemed constitutionally invalid
under Gideon v. Wainwright, 372 U.S. 335 (1963), because they resulted from
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proceedings during which Tucker had been denied the assistance of counsel. After
these convictions were set aside, Tucker moved under 28 U.S.C. § 2255 for relief from
his armed-robbery conviction arguing that “evidence of his prior invalid convictions had
fatally tainted the jury’s verdict.” Tucker, 404 U.S. at 445. The district judge denied
Tucker’s motion, finding that, given the “overwhelming trial evidence” of his guilt, any
error in admitting evidence of his prior convictions “was harmless beyond a reasonable
doubt.” Id. Tucker appealed to the Ninth Circuit.
On appeal, the Ninth Circuit agreed that “the evidence of prior convictions did not
contribute to the verdict obtained” and that “the error in receiving such evidence was
therefore harmless beyond a reasonable doubt” with respect to Tucker’s conviction. Id.
Nevertheless, the Ninth Circuit determined that there was “a reasonable probability that
the defective prior convictions may have led the trial court to impose a heavier prison
sentence than it otherwise would have imposed” and, thus, it was “unable to conclude
that the reception of such evidence was harmless” with respect to Tucker’s sentence.
Tucker v. United States, 431 F.2d 1292, 1294 (9th Cir. 1970). The Ninth Circuit
reversed and remanded for resentencing without regard to Tucker’s invalid prior
convictions. The government appealed to the Supreme Court.
Before the Court, the government argued that “it [was] highly unlikely that a
different sentence would have been imposed even if the judge had known that two of
[Tucker’s] previous convictions were constitutionally invalid.” Tucker, 404 U.S. at 446.
The Court rejected that argument and agreed with the Ninth Circuit that Tucker’s
sentence “might have been different if the sentencing judge had known that at least two
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of [his] previous convictions had been unconstitutionally obtained.” Id. at 448 (“Instead
of confronting a defendant who had been legally convicted of three previous felonies,
the judge would then have been dealing with a man who beginning at age 17, had been
unconstitutionally imprisoned for more than ten years, including five and one-half years
on a chain gang.”). As the Court could not “assume . . . that the trial judge [would] upon
reconsideration ‘undoubtedly’ impose the same sentence,” it affirmed the Ninth Circuit’s
decision requiring resentencing. See id. at 449 n.8.
Powell argues that Tucker “compels the grant of a new sentencing hearing once
it is shown that the sentencing court relied on inaccurate information in determining the
sentence” and that “it does not allow for the reviewing court . . . to deny relief to a
defendant so aggrieved by claiming that the sentence would have been the same
anyway.” Pet.’s Mem., ECF No. 10, at 13–14. That is, according to Powell, under
Tucker, claims like his are not subject to harmless-error review, so the state court’s
decision to deny him relief on that basis was contrary to clearly established federal law
as determined by the Court. I disagree. Tucker does not bar harmless-error review on
claims like Powell’s. To the contrary, the Ninth Circuit in Tucker explicitly applied
harmless-error review to such a claim, and the Supreme Court expressly agreed with its
reasoning. Both the Ninth Circuit and the Supreme Court simply concluded that the
error in Tucker’s case was not undoubtedly harmless.
Powell relies heavily on United States ex rel. Welch v. Lane, 738 F.2d 863 (7th
Cir. 1984), in which the Seventh Circuit held that, under Tucker, “a sentence must be
set aside where the defendant can show that” (1) “information before the sentencing
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court was inaccurate” and (2) “the sentencing court relied on the misinformation in
passing sentence.” Id. at 865. Yet, Welch “cannot form the basis for habeas relief”
under § 2254(d) because “circuit precedent does not constitute ‘clearly established
Federal law, as determined by the Supreme Court.’” Parker v. Matthews, 567 U.S. 37,
48–49 (2012) (per curiam). Moreover, that other federal circuit courts have construed
and applied Tucker differently—e.g., by only applying it where a prisoner is sentenced
based on prior convictions obtained in violation of Gideon, Keeny v. Swenson, 458 F.2d
680, 683 (8th Cir. 1972) (per curiam)—shows that Tucker itself did not clearly establish
the rule set forth in Welch. See Brian R. Means, Federal Habeas Manual §§ 3:38, :62,
Westlaw (updated June 2018).
Even if Welch could provide a basis for relief here, Powell fails to show that the
state court decision at issue was contrary to it. Welch most clearly applies where a
“reviewing court” is asked to “independently review the accurate information” that was
before the sentencing court to determine whether it “might have justified the sentence,
independent of the inaccurate information.” Welch, 738 F.2d at 867. Such an inquiry is
improper because it calls for “sheer speculation in reconstructing the sentencing court’s
thought processes.” Id. But a reviewing court need not engage in any such speculation
where, as here, “the judge who originally sentenced a defendant” considered the
defendant’s request for relief first. See id. at 868 n.6.
In fact, the Seventh Circuit has held that Tucker is ordinarily satisfied where the
sentencing judge makes “an express determination that the original sentence remain[s]
appropriate” based on the accurate information he relied upon at sentencing, despite his
error in also relying upon inaccurate information. Lawary v. United States, 599 F.2d 218,
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226 (7th Cir. 1979). For example, in Crovedi v. United States, 517 F.2d 541 (7th Cir.
1975), the defendant moved for relief under § 2255 arguing that his sentence was
based on prior convictions obtained in violation of Gideon. See id. at 543, 546–47. The
sentencing judge denied the motion because, “regardless of the invalidity” of those
convictions, “the sentence imposed . . . was entirely appropriate.” Id. at 547. The
Seventh Circuit “interpreted this as a reaffirmation of the sentence without regard to the
prior convictions, and held that sufficient, since ‘a remand for reconsideration could
accomplish no more than that which [had] already occurred.’” Lawary, 599 F.2d at 225–
26 (quoting Crovedi, 517 F.2d at 547).
In Powell’s case, the same judge who sentenced him reconsidered his sentence
in light of the accurate and inaccurate information that the judge relied upon at
sentencing and reaffirmed it, and the Wisconsin Court of Appeals held that sufficient.
Those decisions were not contrary to Tucker itself, nor were they contrary to circuit
precedent applying Tucker. Therefore, Powell is not entitled to relief under § 2254(d)(1),
and I will deny his habeas petition to the extent it seeks such relief.
II. Unreasonable Determination of the Facts
Powell also argues that the state court’s decision was based on an unreasonable
determination of the facts in light of the evidence presented in state court. § 2254(d)(2).
To prevail under § 2254(d)(2), Powell cannot merely show that “the state court’s
determination was incorrect.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). He must
instead establish that “the state court determined an underlying factual issue against the
clear and convincing weight of the evidence.” Weaver v. Nicholson, 892 F.3d 878, 882
(7th Cir. 2018) (quoting Morgan v. Hardy, 662 F.3d 790, 798 (7th Cir. 2011)). “A state
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court decision that rests upon a determination of fact that lies against the clear weight of
the evidence is, by definition, a decision ‘so inadequately supported by the record’ as to
be arbitrary and therefore objectively unreasonable.” Morgan, 662 F.3d at 798 (quoting
Ward v. Sternes, 334 F.3d 696, 704 (7th Cir. 2003)).
Powell’s § 2254(d)(2) claim concerns “statements made by his ex-wife in a letter”
that the trial judge relied upon at sentencing. Powell, No. 2012AP327, slip op. at 2. In
that letter, “[s]he described an episode where he made her kneel on the floor of the
garage and said he was going to shoot her, and that he did discharge the gun, and she
thought she was going to die.” ECF No. 9-10, at 67:9–:12. However, as Powell’s ex-wife
later admitted under oath, “the information about the incident in the garage was
inaccurate.” Powell, No. 2012AP327, slip op. at 2. “He did not shoot the gun.” ECF No.
9-12, at 22:9. As to “what happened on that occasion,” she testified,
I came home from a night of drinking. My husband and I at the time
had a verbal dispute. He -- him and I both were exchanging vulgar words.
Urn, he told me that he wanted me to die. Told me that he wanted to kill
me. He went behind the closet door in our bedroom, got a gun, said he
was going to shoot me. I told him not in front of the children, not in the
house. I ran out to the garage. He followed me. When I was in the garage,
I said -- told him just to do it. I told him shoot me, just get me out of my
misery. I went down on my knees. He threw the gun down next to me, said
I wasn’t worth it, and he left. He left the garage.
Id. at 19:4–:15. Then, she “picked the gun up” and “discharged it.” Id. at 20:3.
Having heard Powell’s ex-wife testify, the sentencing judge was convinced that
Powell “didn't shoot the gun” but that, “other than that fact, . . . the core story [was] still
true.” Id. at 58:16, :24–:25. Moreover, the judge said, “the fact that [Powell] isn’t the one
that actually pulled the trigger . . . doesn't seem to change the entire picture that there
was a great deal of ugliness in the home regarding this now ex-wife and him.” Id. at
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59:13–:17. In fact, the judge was “still convinced” that, other than “the embellishment
about who shot the gun,” statements by Powell’s ex-wife in her letter “about . . . ugly
domestic, abusive threats, verbal, if not physical, . . . were true, and that despite . . . 50
people sending letters saying that he projected a pretty good image to the outside
world, . . . behind closed doors . . . in a marriage that was under stress, there was
difficulty and ugliness and threats.” Id. at 60:2–:10. The judge concluded that, despite
“the lie,” given “the entire picture,” he “would have drawn and reached the same
conclusions and imposed the same sentence.” Id. at 60:20–:24.
On appeal in state court, Powell challenged the trial judge’s “determination that,
apart from her admitted lie, [his ex-wife] was otherwise truthful in her submissions to the
court.” See Pet.’s Mem., supra, at 17. The Wisconsin Court of Appeals affirmed the
sentencing court’s conclusion, noting that “[t]he credibility of a witness is for the trial
court to determine” and holding that, as “[t]he trial court’s determination [was] not clearly
erroneous,” the court of appeals would “not upset” it. Powell, No. 2012AP327, slip op. at
3 (quoting State v. Lukensmeyer, 409 N.W.2d 395, 401 (Wis. Ct. App. 1987)).
Powell now argues that the state appellate court’s conclusion that the sentencing
judge’s credibility determination “was not clearly erroneous. . . . ignores the clear and
convincing weight of the evidence.” Pet.’s Mem., supra, at 17. Powell insists that the
“weight of the evidence demonstrat[es] that [his ex-wife] was not to be believed,” as she
had “a motive to lie” and “personal animosity towards [him]” and “admittedly lied” to the
sentencing court. Id. at 18–20. Moreover, Powell says, his ex-wife’s statements that he
was abusive were only corroborated by her son (his step-son) and her “live-in
boyfriend,” who sent a letter to the court at sentencing describing himself as a
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“concerned citizen” to “conceal[] his [true] identity.” Id. at 17–19. In Powell’s view, given
“these grotesque problems with [his ex-wife’s] honesty” and “the total absence of any
[untainted]
evidence
corroborating”
her
statements,
the
sentencing
judge’s
determination that she was generally credible and the appellate court’s decision
deferring to that determination were both unreasonable. Id. at 20.
Powell has shown that the sentencing court had good reason to question his exwife’s credibility, but he has not shown that its determination as to her credibility was so
inadequately supported by the record as to be objectively unreasonable.
The [sentencing] court heard the ex-wife’s testimony that she had lied
about the garage incident and questioned her about the other statements
she made [in her letter], including her observation of Powell’s demeanor
after the fatal accident and at the hospital, that Powell claimed to be the
best drunk driver, and that Powell had driven drunk other times.
Powell, No. 2012AP327, slip op. at 3. The judge even recognized that some of her
statements were only corroborated by her son, who “may have [had] an ax to grind
against his stepfather,” and her boyfriend, who may have “want[ed] [him] gone.” ECF
No. 9-12, at 59:1–:5. Even so, the judge found her statements, apart from her admitted
lie, credible. That Powell disagrees does not make his finding unreasonable.
Further, Powell has not shown that the state court of appeals unreasonably
deferred to the sentencing judge’s credibility determination. In general, reviewing courts
“give singular deference to a trial court’s judgments about the credibility of
witnesses. . . . because the various cues that ‘bear so heavily on the listener’s
understanding of and belief in what is said’ are lost on an appellate court later sifting
through a paper record.” Cooper v. Harris, 137 S. Ct. 1455, 1474 (2017) (quoting
Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985)).
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Here, the sentencing judge was in the best position to assess the credibility of
Powell’s ex-wife, as only he “heard her testimony” and “could eyeball her” as she
testified. See ECF No. 9-12, at 58:15, :20. “[A] finding purportedly based on a credibility
determination” may nevertheless be clearly erroneous if, say, “[d]ocuments or objective
evidence . . . contradict the witness’ story[] or the story itself . . . [is] so internally
inconsistent or implausible on its face that a reasonable factfinder would not credit it.”
Id. But where, as here, a trial judge decides “to credit the testimony” of a witness who
“has told a coherent and facially plausible story that is not contradicted by extrinsic
evidence, that finding, if not internally inconsistent, can virtually never be clear error,”
much less objectively unreasonable. See id.
“Credibility determinations made in the trial court are notoriously difficult to
overturn under § 2254(d)(2).” Coleman v. Hardy, 690 F.3d 811, 817 (7th Cir. 2012).
Powell has not shown sufficient cause to overturn the credibility determination of the
state trial court at the heart of his case or that the state appellate court unreasonably
deferred to that determination. Therefore, he is not entitled to relief under § 2254(d)(2),
and I will deny his petition to the extent it seeks such relief.
III. Conclusion
For the reasons discussed above, IT IS ORDERED that this petition for a writ of
habeas corpus is DENIED. The Clerk of Court shall enter judgment accordingly.
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IT IS FURTHER ORDERED, pursuant to Rule 11 of the Rules Governing § 2254
Cases, that a certificate of appealability is DENIED.
Dated at Milwaukee, Wisconsin, this 20th day of July, 2018.
s/Lynn Adelman
LYNN ADELMAN
District Judge
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