Maus v. Foster

Filing 55

ORDER Denying Petition for Writ of Habeas Corpus, Denying Certificate of Appealability, and Dismissing Case signed by Judge Charles N Clevert, Jr on 2/21/17. (cc: all counsel and via US Mail to Brain A Maus)((kwb), C. N. Clevert, Jr.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BRIAN A. MAUS,
Petitioner,
v.

Case No. 14-C-1393

BRIAN FOSTER,
Respondent.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DENYING
CERTIFICATE OF APPEALABILITY, AND DISMISSING CASE
On the morning of January 3, 2005, Gerri Bennetts woke after being hit on the right
side of her head by a blunt object. As she turned and discovered the barrel of a gun,
Bennetts realized there were three people in her room. Although one of the men had
wrapped his face in Ace bandages, Bennetts recognized the voice of Brian Maus -- a man
she had known for eleven or twelve years. The three men left after removing three safes,
Bennett’s Glamour Shots portfolio, and other property. Afterward, Bennetts called the 911
dispatcher to identify Maus, and to provide the license plate number and a description of
the getaway car. Following the issuance of charges and representation by no fewer than
seven attorneys1, Maus insisted on representing himself at trial.2 Maus pled no-contest
to a felony bail jumping charge, but proceeded to verdict on charges of armed burglary with
a dangerous weapon and armed robbery with threat of force, both as party to a crime. The
jury found him guilty on both counts, and the trial court sentenced Maus to thirteen years
1

At the July 1, 2009, hearing, Attorney Cadwell m oved to withdraw noting that she was the

ninth attorney.
2

Outside the presence of the jury, the court inform ed Maus that he did a “good job trying
this case.” The court thought Maus was prepared, his argum ents were cogent and his defense was
appropriate, and that he was prepared to proceed. (Doc. 54-9 at 182.)

initial confinement and thirteen years of extended supervision, to be served consecutive
to any existing sentence. The Wisconsin Court of Appeals granted appellate counsel’s
motion to withdraw “based on Maus’s disorderly, disruptive and disrespectful behavior and
his grievance filed with the Office of Lawyer Regulation” but gave Maus an extension to file
a post-conviction motion. That 85-page post-conviction motion with 15 exhibits was
denied. Maus appealed, presenting eighteen separate claims for relief. The Wisconsin
Court of Appeals affirmed, and the Wisconsin Supreme Court denied his petition for review
in a September 24, 2014, order. State v. Maus, 2014 WI App 90, cert. denied, 855 N.W.2d
696 (Sept. 24, 2014).
The pending petition is governed by the provisions of the Anti-Terrorism and
Effective Death Penalty Act of 1996 (AEDPA). See Lindh v. Murphy, 521 U.S. 320, 336
(1997). AEDPA allows a district court to issue a writ of habeas corpus on behalf of a
person in custody pursuant to a state court judgment “only on the ground that he is in
custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). The court can grant an application for habeas relief if it meets the stringent
requirements of 28 U.S.C. § 2254(d), set forth as follows:
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.

2

A claim is considered to be procedurally defaulted and not subject to habeas review
when the state court denies a petitioner's claim based on an independent and adequate
state law ground. A state law ground is independent when the court relied on the
procedural bar as an independent basis for its disposition of the case. Kaczmarek v.
Rednour, 627 F.3d 586, 592 (7th Cir. 2010)(citing Smith v. McKee, 598 F.3d 374, 382 (7th
Cir. 2010)). Further, the state law ground is adequate when it has been proclaimed prior
to the court's ruling and regularly followed by the state's courts. Id., 627 F.3d at 592. When
a state court decides a claim on an independent and adequate state law ground, it does
not reach federal law. Szabo v. Walls, 313 F.3d 392, 395-96 (7th Cir. 2002).
There are limited circumstances in which a federal court will proceed with habeas
review notwithstanding a procedural default. Lee v. Kemna, 534 U.S. 362, 363, 122 S. Ct.
877, 151 L. Ed. 2d 820 (2002). Specifically, a procedural default may be overlooked when
the petitioner demonstrates cause for the default and prejudice based on that default or
when the petitioner establishes that the denial of relief will result in a miscarriage of justice.
Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977); Murray
v. Carrier, 477 U.S. 478, 495-96, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986), superseded on
other grounds by statute, Antiterrorism and Effective Death Penalty Act, Pub. L. 104-132,
110 Stat. 1214 (1996).
Maus’s petition set forth 21 separate grounds for relief; however, this court
dismissed his claim that the trial court “forced counsel on him when he wanted none”
because the record revealed he represented himself at trial. After respondent pointed out
that three of the claims were not exhausted in the state courts, Maus sought leave to file
a petition omitting the three claims. These claims included (1) Maus was forced to
3

represent himself, (2) his rights were violated because he did not have a probable cause
hearing within 15 days of his arrest, and (3) Maus was denied his right to attack a witness’s
credibility “about being mentally retarded.” (Doc. 22.) Accordingly, the court turns to the
remaining claims in the amended petition. (Doc. 22-1.)
Initially, Maus alleges that appellate counsel (Karen Missimer) was ineffective in
failing to raise “all the meritial [sic] issues Maus point[ed] out on appeal,” and that trial
counsel (Alexander Brown, Robert Rusch, Shawn Mutter, John Bachman, and Barbara
Cadwell) were ineffective in “refusing to make proper arguments or objections to protect
Maus and his civil rights.” (Doc. 22-1.) According to Maus, Missimer moved to withdraw
without filing a no-merit report or a post-conviction motion thereby forcing him to represent
himself.

He further contends that every one of the attorneys “criminally and civilly

conspired with the District Attorney Ralph Uttke, judges, Langlade County police, state
witnesses and others to cover up the criminal misconduct that took place in Langlade
County.” (Doc. 22-1.)
Attached to his brief, Maus includes motions to withdraw that were filed by counsel
during his criminal proceedings. Each of the attorneys cited Maus’s insistence on filing his
own motions without their knowledge or consent, and his refusal to hear their advice.
Attorney Bachman stated that Maus was “utterly impervious to advice from any attorney,”
Attorney Mutter stated Maus refused to even listen to his advice, and Attorney Bachman
stated that Maus “was unable to rationally discuss anything with him” instead directing a
“stream of vile profanities at him.” Attorney Cadwell refused to file Maus’s motions on the
grounds that such motions were frivolous and such behavior unethical. Indeed, Attorney

4

Mutter could not “ethically” represent Maus who was pursuing an objective that Mutter
considered to be “repugnant and imprudent.” (Doc. 27-2, Exs. B-E.)
Further, during a April 13, 2006, hearing in Langlade County Circuit Court, Maus
unequivocally stated his intention to proceed pro se:
Mr. Maus:

I represent myself. I filed that motion on September 28, saying
that I represent myself. And this court has abused its
discretion and did everything that they could trying to put a
counsel onto me. I didn’t ask this court or the State or one of
the State’s crooks to represent me. I represent myself. I filed
my own motion September 28th. And I am representing myself.
I don’t want none of the State’s crooks. All they are – they
steal money and lie ....

(Doc. 16-13.) The Wisconsin Court of Appeals granted Attorney Missimer’s motion to
withdraw as appellate counsel based on Maus’s “disorderly, disruptive, and disrespectful
behavior and his grievance filed with the Office of Lawyer Regulation.” (Doc. 16-4.) In her
motion, Missimer requested that the Court of Appeals dismiss the no-merit appeal without
prejudice and set the time for Maus to file a pro se post-conviction motion or notice of
appeal. Maus moved to have Missimer disbarred and accused his counsel of conspiring
with others to cover up criminal misconduct. The Court of Appeals noted that Maus “was
previously warned by the circuit court that his conduct could result in forfeiture of his right
to counsel.” Consequently, the Court of Appeals refused to order the State Defender to
appoint replacement counsel and granted Maus an additional sixty days to file a pro se
post-conviction motion or notice of appeal. (Doc. 16-4.)
During the June 20, 2013, post-conviction motion hearing, Langlade Count Circuit
Judge Leon D. Stenz addressed Maus’s argument that appellate counsel was allowed to

5

withdraw before filing a no-merit brief. In rejecting Maus’s argument, Judge Stenz explained:
I do know from my handling of the case that Mrs. Messimer [sic] has been
here twice requesting to withdrawal [sic] from representation.
I also know this, in the case in chief M. Maus has had approximately at least
seven attorneys, I believe. All of them have sought to withdrawal [sic], I
believe, so, apparently, Mr. Maus is difficult to work with.
When he was here before the court for in the case in chief, I advised him as
to the advantage and disadvantages of having an attorney and warned him
of potential of forfeiture of counsel. When we discussed the issue of Mrs.
Messimer’s [sic] request to withdrawal [sic], we had two different hearing[s]
on that. I again advised Mr. Maus of the benefit of attorneys and
disadvantage of representing himself and warned him of potential of
forfeiture of counsel, and I explained to him the authority of appellate
counsel.
He expressed to the court an understanding and agreement that he would
allow her to perform her duties. And despite those warnings and despite his
knowledge of potential for forfeiture he refused, apparently to cooperate with
the attorney and attempted from my review, attempted to manipulate the
attorney and frustrated the attorney’s ability to proceed.
I believe that frustration had to be knowingly and intentionally because he
had to be advised so many times. I agree that I don’t know the basis for the
Court of Appeals allowance of Mrs. Messimer [sic] to withdrawal. [sic]. I can’t
speak to that issue. All I can say is that Mr. Maus was warned on number of
occasions that he had to cooperate.
(Doc. 20-8 at 7-8.)
On appeal from the order denying post-conviction relief, the Wisconsin Court of
Appeals ruled that Missimer properly refused to pursue all claims because she had an
ethical duty not to pursue meritless claims. Maus, 2014 WI App 90, ¶ 8 (citing State ex rel.
Flores v. State, 183 Wis. 2d 587, 621, 516 N.W. 2d 362 (1994)). The Court of Appeals
determined that any ineffective assistance claim was moot because “Maus was able to
personally raise his claims after his no-merit appeal was dismissed and his case remanded
for him to file a post-conviction motion.” Id. Finally, there was no basis for the accusation
6

that Missimer illegally withdrew from representation inasmuch as she successfully moved
to withdraw based on Maus’s inappropriate behavior. Id.
With respect to the allegations that all five trial attorneys were ineffective, the
Wisconsin Court of Appeals ruled that the ineffective assistance of trial counsel claims
were moot because Maus had the opportunity to raise all of the claims “once he was
allowed to proceed pro se.” Id., 2014 WI App 90, ¶ 9. The only claims that Maus could not
later raise were (1) that the complaint stated lies, and (2) that there was no probable cause
because it was not raised before the preliminary hearing. However, counsel was not
ineffective in this respect because any such claims would have been rejected. Id.
Respondent argues that the court’s ruling that the ineffective assistance of counsel
claims were moot provides an adequate state law ground for the decision independent of
the federal question. Coleman v. Thompson, 501 U.S. 722, 729 (1991). If the state court
denied the claim on state laws, the claim is subject to procedural default. Maus responds
that he didn’t default any of the issues because he never had appellate counsel appeal his
conviction, and to hold him to a default on this issue would be a miscarriage of justice.
However, this argument fails because the Court of Appeals found that appellate counsel
had an ethical duty not to pursue claims she felt were meritless and she did not “illegally
withdraw.” 2014 WI App 90, ¶ 8. Her withdrawal was based on Maus’s inappropriate
behavior. Hence, there can be no finding of deficient performance on this record.
As for trial counsel, the Court of Appeals similarly emphasized that counsel was not
ineffective for failing to file motions they deemed frivolous, and they “correctly” determined
Maus’s claims lacked merit. Because this court finds no evidence of deficient performance
and the state court’s rulings were neither contrary to nor an unreasonable application of
7

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), Maus’s
claims for ineffective assistance of counsel must be denied.
Next, Maus asserts that officers lacked probable cause or a warrant to make a traffic
stop and arrest him in Marathon County one hour after the robbery. However, the Circuit
Court heard testimony from the arresting officers during the May 25, 2006, hearing. Officer
Michael Murray testified that he was on duty early morning on January 3, 2005, when he
heard a dispatch for an alert to be on the look out for a white Buick. (Doc. 17 at 19-22.)
Murray was informed that the vehicle was involved in an armed robbery at a residence.
He observed the vehicle “about a half mile east of Marathon County line at Highway
Double H” when he was eastbound and the vehicle was westbound. He turned to follow
the vehicle and stopped it about “a mile west of Highway Double H or where the Marathon
County Line is.” (Doc. 17 at 22.) He testified that he stopped the vehicle based on the
report and his understanding that it may have been involved in the armed robbery at a
residence. (Id.) Deputy Ben Baker was also working that morning and received the same
information from Langlade County dispatch. He reported that the information was received
from Bennetts, who called dispatch to report that she had been robbed. (Doc. 17 at 37.)
Bennetts identified the car, and wrote down a license plate number (either VBN 641 or
VBN 671). (Doc. 17 at 48.) Bennetts further reported that she recognized the voice of
Maus because she had gone to school with him and she never got along with him. (Doc.
17 at 47.)
On appeal, Maus argued that he “was illegally arrested in Marathon county by
Deputy Murray without any probable cause, arrest warrant, and outside Murray’s
jurisdiction violation of Maus’s 4th, 5th and 14th Amendments.” (Doc. 16-5 at 23.) Maus
8

argued, without evidence, that the dispatcher lied about the license plate number and then
destroyed all recordings to coverup that the dispatcher was the one who provided the
license plate number to officers rather than Bennetts. The only proof offered by Maus was
a letter addressed to Margaret Maus from Sheriff Bill Greening dated September 12, 2011.
(Doc. 27-2, Ex. H.) The letter stated that the Sheriff has no record or copy of the 911
recording system manual from 2005 and no record showing whether or not the 911 system
was working properly in January of 2005. In addition to citing the Fourth Amendment,
Maus argued Seventh Circuit case law regarding the Constitutional requirements for a stop.
(Doc. 16-5 at 24.)
The Wisconsin Court of Appeals found that the “circuit court properly determined
that, when the deputy spotted a vehicle with plate number VBN-671 matching the color and
make of the getaway vehicle one hour after the robbery, he had probable cause to stop
and arrest Maus. Further the Langlade County Deputy’s arrest was a proper ‘fresh pursuit’
arrest.” 2014 WI App 90, ¶ 12. Once the deputy spotted the vehicle, he immediately
pursued it and completed the stop one-half mile into Marathon County. Id.
Pursuant to Stone v. Powell, 428 U.S. 465, 494, 96 S. Ct. 3037, 49 L. Ed. 2d 1067
(1976), a federal habeas court cannot review a Fourth Amendment claim if the petitioner
had a full and fair opportunity to litigate the claim in the state courts. Id.; see also Wright
v. West, 505 U.S. 277, 293, 112 S. Ct. 2482, 120 L. Ed. 2d 225 (1992). Because it is clear
that Maus informed the state court of the factual basis for his claim, argued that the facts
establish a violation of the Fourth Amendment and that the state court analyzed the facts
and properly applied the law, this Fourth Amendment claim is not cognizable in federal
habeas review. See Hampton v. Wyant, 296 F.3d 560, 563 (7th Cir. 2003). Further, to the
9

extent that Maus contends that the officer had no authority under state law to make the
arrest in another county, such assertion is not a cognizable federal claim.
Grounds four through ten allege misconduct by Langlade County officials.
Specifically, Maus asserts that:
FOUR:

The Langlade County officers conspired to plant
evidence.

FIVE:

The District Attorney lied about the 911 system
“crashing” so he would not have to provide Maus with
the tape to prove that Bennetts never identified him.

SIX:

The District Attorney solicited perjur[ed] testimony out
of Bennetts, Murray, Baker, Keith Swoboda and Anna
Osborne. He had Bennetts claim she recognized
Maus’s voice during the robbery.

SEVEN:

The District Attorney and Deputy Lenzer solicited a
false statement out of Scott Mackenzie by coaching,
threatening, and make promises to him.

EIGHT:

The Langlade County Sheriff’s Department failed to
arrange an identification line-up between Maus and
Mackenzie to see if he could identify Maus in a line-up.

NINE:

There was no voice identification done between Maus
and Bennetts to see if she could identify Maus.

TEN:

Judge Stenz was “bias and impartial and threatened to
hold Maus in contempt of court if he disclosed to the
jury Bennetts was a drug dealer.”

In his brief supporting the petition, Maus argues that he raised each of these arguments
properly and that the state waived the issues. However, he presents no evidence and cites
to nothing in the record to support any of these claims.
The Wisconsin Court of Appeals dismissed the allegations of “multiple instances
of misconduct by Langlade County officials, including the judge and the prosecutor,”

10

because they were either “unsupported or belied by the record.” 2014 WI App 90, ¶ 20.
Additionally, the Court of Appeals found that Maus’s arguments did not merit individual
attention and were rejected as undeveloped. Id. The Wisconsin Rules of Appellate
Procedure require that an appellant provide a statement of facts relevant to the issues
presented for review with appropriate references to the record. Wis. Stat. § 809.19(1)(3).
To the extent that the state court rejected Maus’s claims as unsupported or
underdeveloped, this is an adequate and independent state ground for its decision
resulting in the procedural default of these claims which cannot be overcome. See Kerr
v. Thurmer, 639 F.3d 315, 323 (7th Cir. 2011), vacated on other grounds, 132 S. Ct. 1791
(2012)(holding that a “party’s failure adequately to develop an argument has consistently
been a reason to reject claims advanced by litigants in the Wisconsin state courts). That
a state court could have reached the claims and chose not to do so “makes no difference
in the adequate-and-independent ground analysis.” Id. The bottom line is that there is
nothing in this record to suggest that these arguments warrant habeas relief.
Count nine was rejected by the Wisconsin Court of Appeals because Maus offered
no authority for the proposition that law enforcement was required to administer a voice
lin-up. 2014 WI App 90, ¶ 14 (citing State v. Flynn, 190 Wis. 2d 31, 39, n.2 (Ct. App.
1994)). Further, the voice line-up was unnecessary where the victim recognized Maus’s
voice at the time of the crime. Id. Similarly, count ten was rejected by the Wisconsin Court
of Appeals because the “trial court was a model of patience, restraint and fairness with
Maus, who repeatedly made baseless accusations of official misconduct against the judge
and prosecutor and was prone to profanity-laden outbursts in court.” Id., 2014 WI App 90,

11

¶ 20.

Moreover, this court is unaware of any clearly established Federal law, as

determined by the Supreme Court, or any evidence in the record that would otherwise
support Maus’s claims.
Count eleven accuses Deputy Baker of preparing a false report that Maus gave an
oral statement about his involvement in the robbery. The record shows that the trial court
conducted a hearing on May 25, 2006, regarding Fourth and Fifth Amendment issues
raised by Maus. With respect to Maus’s oral statement, Baker testified that he was at the
Langlade County Jail on January 6, 2005, as a deputy with the Langlade County Sheriff
Department. (Doc. 17 at 5.) Maus had been brought in on January 3, 2005, and given a
Miranda warning by Mike Murray with Baker present. (Doc. 17 at 8.) Baker had contact
with Maus on the 6th for fingerprinting. (Doc. 17 at 8.) Baker did not ask Maus any
questions; however, Maus initiated a conversation and made voluntary statements in the
booking area of the jail while he was being fingerprinted. (Doc. 17 at 9-10.) Maus asked
Baker if he was being charged and stated why he felt he had been arrested illegally.
(Doc. 17 at 10.)
At trial, Baker was not called in the case in chief. Prior to Baker being called as a
rebuttal witness, Judge Stenz explained to Maus that it had been determined earlier in the
case that it was not an interrogation but rather a brief exchange in which Maus “basically
volunteered the statements.” (Doc. 54-8 at 29.) Statements made in response to further
questions by Baker were suppressed. (Id.) Moreover, the district attorney indicated that
he would not use any of the suppressed portion, and would introduce the voluntary
statement by Maus on rebuttal whereby Maus said “Doing you a favor. I was just there.
I didn’t do nothing. I just watched. I don’t go for the violence stuff.” (Doc. 54-8 at 29.)
12

The Wisconsin Court of Appeals rejected the claim as inadequately developed, and,
as such, established an independent and adequate state ground for its decision as
discussed above. The court agrees that the record shows that the issue was not properly
developed or argued on appeal. Furthermore, the Wisconsin Court of Appeals added that
it agreed with the trial court and the State’s analysis, citing the State’s review of the record.
2014 WI App 90, ¶13. The State’s review included the following:
Examining the record, it appears that Maus made inculpatory statements to
Officer Baker while in custody after having invoked his right to counsel three
days earlier (179:8-17; 247: St. Ex. 4, 317:11-14). Maus volunteered these
statements not while being interrogated, but as he was having his mug shot
and fingerprints taken. (179:8-17; 247: St. Ex. 4; 317:25-29). Among
Maus’s statements was “I did you guys a favor” by committing the crime, and
“you guys let it go right under your nose (247: St. Ex. 4, 317:12). The officer
then asked, “You talking cocaine?” (id.). Before trial, Judge Kennedy ruled
that Maus’s statements prior to the officer’s question about cocaine were
admissible, and Judge Stenz agreed with Judge Kennedy’s analysis, and
allowed these statements to be used during the State’s rebuttal in response
to alibi testimony presented by the defense (179:8-17; 317:11-37).
The trial court properly allowed the evidence on rebuttal. First the
statements were not the product of an interrogation, but were volunteered,
and therefore Maus’s invocation of his Miranda right to counsel three days
earlier would not bar admission of these statements. See State v. Banks,
2010 WI App 107, ¶¶ 33, 35, 328 Wis. 2d 766, 790 N.W.2d 526. Second,
even if the court had erred in determining that no Miranda violation occurred,
such evidence may be offered on rebuttal, as it was in this case, in response
to the defense’s alibi testimony. See State v. Mendoza, 96 Wis. 2d 106,
118-19, 291 N.W.2d 478 (1980).
Finally any error in admitting this evidence on rebuttal would have been
harmless because no rational jury would have reached a different outcome
absent this evidence. See State v. Harvey, 2002 WI 93, ¶ 46, 254 Wis. 2d
442, 647 N.W.2d 189.
On this record, the court is unable to conclude that the Court of Appeals’ decision to adopt
this reasoning was contrary to or an unreasonable application of clearly established
Federal law or otherwise based on an unreasonable determination of the facts.
13

Ground twelve of the petition charges that the complaint “didn’t state any probable
cause, but a bunch of lies.” According to Maus, excising the lies leaves a complaint with
no probable cause.
The Wisconsin Court of Appeals commented that the accuracy of the allegations
against Maus were a matter for the jury, and rejected this argument as inadequately
developed. By citing State v. Flynn, 190 Wis. 2d 31, 39, n.2 (Ct. App. 1994)3, the
Wisconsin Court of Appeals provided an independent and adequate state ground for his
decision, and Maus has not shown cause or prejudice for his default beyond his failed
ineffective assistance of counsel claims.
In ground thirteen, Maus maintains that the state courts denied him his right to a
speedy trial. During the post-conviction hearing on June 20, 2013, Judge Stenz addressed
Maus’s speedy trial motion. (Doc. 20-8 at 20.) He explained that there are statutory
requirements and Constitutional requirements. (Doc. 20-8 at 20-21.) Acknowledging that
a delay over twelve months is presumptively prejudicial, Judge Stenz focused on the
record notwithstanding Maus’s failure to identify the delays chargeable to the state. (Doc.
20-8 at 22.) Specifically, Judge Stenz noted the following delays:

3
Footnote 2 of the Flynn decision explains the state court’s approach to issues that have
not been adequately briefed:

W e will not decide issues that are not, or inadequately, briefed. See State v. Pettit, 171
W is. 2d 627, 646-647, 492 N.W .2d 633, 642 (Ct. App.1992) (appellate court m ay decline
to address issues that are inadequately briefed; argum ents that are not supported by legal
authority will not be considered); W .H. Pugh Coal Co. v. State, 157 W is. 2d 620, 634, 460
N.W .2d 787, 792 (Ct. App.1990) (an appellate court m ay decline to consider issue that is
undeveloped in the briefs or that is not supported by citation to legal authority); Reiman
Assocs. v. R/A Advertising, 102 W is.2d 305, 306 n. 1, 306 N.W .2d 292, 294 n. 1 (Ct.
App.1981) (issue raised but not briefed or argued is deem ed to be abandoned); see also
§ 809.19(1)(e), Stats.
190 W is. 2d at 39, n.2.

14

There were a number of motions which were filed throughout this time which
required extensive hearing by the parties. In order to give Mr. Maus a fair
trial, these issues had to be held some point. There were character
evidence motions, requests for jury instructions and objectives to evidence,
and motions to suppress statements, notice of alibi. There was also a writ
of Habeas Corpus motion hearing held.
It appears that Mr. Rusch was initially involved. He withdrew or tried to
withdraw on October of 2005. Finally, I believe he was allowed to withdraw
November of 2005, and they appointed Mr. Hughes. I don’t know what
happened to Mr. Hughes. But then Mr. Gauer was appointed and accepted
the case – does not accept the case and other attorneys were appointed
throughout this case.
There was requirement for preparation of transcripts. There was also in
June of 2006 relief to file a non-final order with the Court of Appeals. The
appeal was filed in the Court of Appeals. But I believe they dismissed it
shortly thereafter. There was habeas corpus proceeding motions filed to
stay all proceedings. Mr. Maus had filed additional motions for appointment
of counsel and removal of the case. A number of motions for stay of
proceedings. I do see a renewal of a speedy trial motion in October of 2006
and a motion for removal of the court and the judge. There were in October
of 2006, as the case was preparing for trial, objections to the jury
instructions. November there was claim for ineffective assistance of
counsel. November of 2006 there were motions to dismiss and request for
different jury instruction as well as a motion to suppress statements.
Responses to notice of all alibi.
...
I see that your bond was increased. The bond was increased back in early
2007. Additional filings by Mr. Maus for ineffective assistance fo counsel
and a motion for the attorney to withdraw. A motion by the defendant to stay
the proceedings. An again in April of 2007, a request for transcripts,
scheduling orders, setting matters for trial, I believe.
In May of 2007, a further motion to withdraw from counsel. Also it appears
that there was another appeal in 2007 to the Court of Appeals, which was
resolved a number of months later. Then there was, apparently, a petition
to the Supreme Court because couple of months later there was order from
the Supreme Court in 2008, I believe in September or so, when I become
involved in the case.
A number of other motions had not been decided, were refiled and had to
be decided. I had to refamiliarize myself with the extensive happenings up
15

that point. Additional motions for attorney to withdraw, request for
substitution of Judge, request for appointment of investigator. The number
of motions were significant. And usually Mr. Maus would file each of these
with very lengthy handwritten motions which required the Court to set a time
to hear all of Mr. Maus’s motions and prepared for trial.
...
And each time that he filed another set of motions it required the Court to
review those and make sure that whether they were the same and give Mr.
Maus the due process right to be heard with respect to those motions and
number of appeals through the Court of Appeals and many requests and
delay occasioned by the fact that each counsel appointed for Mr. Maus
sought to withdrawal due to Mr. Maus’s conduct.
So clearly, the delay, most of the delay and any prejudice was caused by the
unavailability of counsel to adequately prepare and the result of the conduct
by Mr. Maus himself.
I also find that there’s really no significant prejudice to Mr. Maus by the
delay. He suggests he lost a witness. His witnesses did not die. They just
didn’t have the information that Mr. Maus wanted. Some witnesses he could
not find. That is not to be – it is not solely, if at all, related to the length of
delay.
(Doc. 20-8 at 24-28.)
The Wisconsin Court of Appeals explained that the burden was on Maus to identify
the various delays in the proceedings and explain which delays should be charged to the
State. 2014 WI App 90, ¶ 16. Because Maus did not identify the delays attributable to the
State, the Court of Appeals rejected the argument as inadequately developed. Id.
Additionally, the Court of Appeals noted that much of the delays were attributable to
Maus’s repeated conflicts with counsel and his serial filings. Id. “The record reveals at
least seven changes of counsel, and Maus submitted countless pro se filings while
represented, including sixty-five filings from September 26, 2005, to April 12, 2006, alone.”
Id.

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Maus’s failure to develop the record or identify the delays chargeable to the state
provides a basis for the state appellate court to reject his speedy trial violation claim.
Moreover, the state court’s determination that any delays were attributable to Maus’s
unauthorized motions, repeated conflicts, and serial filings is not an unreasonable
application of clearly established case law. A petitioner’s Sixth Amendment right to a
speedy trial requires consideration of the length of delay, reason for delay, defendant’s
assertion of his right, and prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530,
92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972) . A review of the docket, transcripts, and Maus’s
own exhibits reveal that the delay was attributable to Maus, his filings, demeanor, attacks
on counsel and the court, and pro se motions forcing the court to search for any basis in
law or fact. Maus cites no prejudice, but rather maintains that the state waived this issue.
For these reasons, ground thirteen is denied.
In ground fourteen Maus contends that the district attorney “illegally suppressed
Faust’s testimony the day of trial” so that Maus wouldn’t have that testimony to show “how
Mackenzie banged his head against the wall to make voices go away, how he seen things
that weren’t there.” The argument appears to arise from the fact that the State did not call
Faust as a witness during its case in chief. However, Larry and David Faust were listed
as rebuttal witnesses to discredit Maus’s alibi.
The Wisconsin Court of Appeals ruled that Maus cited no authority demonstrating
that a prosecutor was required to call a rebuttal witness, and he was free to “subpoena and
call the witnesses if he believed their testimony was necessary to his defense.” 2014 WI
App 90, ¶ 17. Indeed, the trial court addressed Maus’s witness list on July 31, 2009, in
advance of trial. The Fausts were not on the list of individuals that Maus requested be
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subpoenaed. (Doc. 54-5 at 9-14.) Further, the government told Maus at the beginning of
the trial that the Fausts would not be called at witnesses. (Doc. 54-6 at 19.) Citing no
Federal law requiring a district attorney to subpoena and call the witness for Maus in his
case in chief, this argument requires no further discussion.
In ground fifteen, Maus submits that a juror was biased during the trial and that the
state waived or inadequately developed this issue. Private Investigator Susan B. Golding
of Gold Investigations contacted one of the jurors on July 8, 2011, and prepared the
following statement:
On 07/08/11 at approximately 10:55 AM I made a telephone call to 715-6233982. A female answered the phone. I asked her if she had received a
message that I had called a few days earlier and she said yes. I explained
to her the reason why I was calling and that I wanted to schedule a time to
meet with her to discuss the Brian Maus jury trial and to discuss if there were
any hardships she or any of the other jurors had to endure. Michelle said,
“We had food and water, everything we needed.” Michelle went on to say
that it was a two day trial and both days were long and the second day was
especially long. I asked what time the trial started each morning of the two
day trial. Michelle stated that she thought court started at 9:00 A.M. on both
days. Michelle said the first day of the trial went to 7:00 PM or 8:00 PM and
the second day went to 2:00 AM. Michelle stated that would have been her
only issue. Michelle said the second day was too long. Michelle said he
wanted to finish the case. I asked her who “he” was and she said Brian.
Michelle said it was a joke that he represented himself. Michelle said she
never wants to do it again. I asked her what she meant and Michelle said
that she never wants to be on a jury again. I asked her again if she would
meet with me and she said she did not want to come in. I explained to
Michelle that I would come there and that I had several other jurors to
interview in the Antigo area. Michelle insisted that she did not want to meet
with me. I told Michelle that I could write it down as a refusal and she said,
“Then do that.” I said OK and thanked Michelle for her time.
This statement was attached to Maus’s brief in support of his petition, but was neither
authenticated nor sworn under the penalty of perjury. In any event, the Wisconsin Court
of Appeals reviewed this statement as proffered by Maus and concluded that the juror’s

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comments did not demonstrate either subjective or objective bias. “The fact she believed
Maus did a poor job representing himself does not demonstrate she based her verdicts on
anything other than the facts in evidence.” 2014 WI App 90, ¶ 19. Further, the conclusory
argument was rejected as underdeveloped. Id. Notably, the jurors were asked before the
trial whether they had any problem with being fair and impartial because Maus chose to
represent himself, and no juror indicated that it would be an issue. (Doc. 54-6 at 69.)
Having no other evidence to support his argument other than a statement made two years
after the trial, the court finds that Maus has not established entitlement to habeas relief.
Ground sixteen is predicated on the notion that Maus was deprived of his right to
attack Bennett’s credibility by evidentiary rulings that prohibited him from questioning
Bennetts about her alleged drug activity. Along the same lines, Maus asserts in ground
seventeen that he was denied his right to attack Deputy Schunke’s credibility by
evidentiary rulings prohibiting him from asking the deputy about a drug investigation of
Bennetts or how “Schunke threatened false statements out of the Fausts that Schunke
drafted and forced the Fausts to sign.”

MR. MAUS:

Okay. Damn. Excuse me. I just had – Oh I got the
right to get into Gerri Bennetts being a drug dealer even
though she has been convicted of dope. I got the right
to point to a jury that she was robbed because of drugs.

MR. UTTKE:

How is that relevant?

MR. MAUS:

Because she had 16,000 over $16,000, Judge.

THE COURT:

You can’t get into that, Mr. Maus. Doesn’t make a
difference where she got the money from. That is a
whole separate trial. And you can’t impeach the
character of the victim on collateral information such as
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that. And so that would be prohibited by the rules of
evidence. And so even if she was convicted you don’t
know if that money came from that. And the criminal
conviction only is going to be limited to those questions
that Mr. Uttke will ask. So you can’t really go into this
character or other acts that they committed.
(Doc. 54-6 at 48-49.) At trial, Bennetts testified that she had five prior convictions. (Doc.
546-6 at 93.)
The Wisconsin Court of Appeals addressed Maus’s arguments that the trial court
improperly excluded evidence that the victim was involved in the drug trade, the stolen
money was drug money, and a particular deputy had investigated the victim for dealing
drugs. Citing authority that evidentiary rulings are reviewed for abuse of discretion and
upheld if there is a rational basis for the circuit court’s decision, the Court of Appeals
affirmed the trial court’s ruling. 2014 WI App 90, ¶ 18. The Court of Appeals reasoned
that “(1) the money’s source was irrelevant to whether Maus committed the crime of
robbery, and (2) the court determined within its discretion that the drug evidence as highly
prejudicial.” Id. At the same time, the Court of Appeals observed that Maus’s right to
present a defense “does not include an absolute right to present any evidence that might
damage the credibility of his accusers.” Id. (citing State v. St. George, 2002 WI 50, ¶¶ 5052).
To the extent that Maus framed the arguments as evidentiary issues, he did not
present a cognizable federal claim in the state court. However, even if he had raised a
proper Constitutional claim regarding his right to present a defense, the Wisconsin Court
of Appeals decision was neither contrary to nor an unreasonable application of Holmes v.
South Carolina, 547 U.S. 319 (2006), or its progeny.

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As a final matter, Rule 11 of the Rules Governing Section 2254 Cases instructs the
court to consider whether to grant a certificate of appealability. When a court dismisses
a petition on procedural grounds, the determination of whether a certificate of appealability
should issue has two components. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). First,
the petitioner must show that reasonable jurists would find it debatable whether the court
was correct in its procedural ruling. Id., 529 U.S. at 484. If the petitioner meets that
requirement, then he must show that reasonable jurists would find it debatable whether the
petition states a valid claim for the denial of a constitutional right. Id. Because this court
is unaware of any basis for concluding that jurists of reason would debate the correctness
of this procedural ruling or otherwise find a reason to encourage Maus to proceed further,
a certificate of appealability must be denied.
Now, therefore,
IT IS ORDERED that Brian Maus’s petition for writ of habeas corpus is denied.
IT IS FURTHER ORDERED that a certificate of appealability is denied.
IT IS FURTHER ORDERED that this case is dismissed.
Dated at Milwaukee, Wisconsin, this 21st day of February, 2017.
BY THE COURT
s/ C. N. Clevert, Jr.
C. N. CLEVERT, JR.
U.S. DISTRICT JUDGE

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