Lock v. Pollard

Filing 40

ORDER signed by Judge Lynn Adelman on 8/4/21 that Michael Lock's petition for a writ of habeas corpus is DENIED. (cc: all counsel and mailed to pro se party)(jad)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MICHAEL LOCK,

Petitioner,

v.

Case No. 15-C-0047

BRIAN FOSTER, Warden,
Waupun Correctional Institution,
Respondent.
DECISION AND ORDER
Michael Lock petitions for a writ of habeas corpus under 28 U.S.C. § 2254. He
challenges his Wisconsin convictions for ten offenses relating to his involvement in a
prostitution conspiracy.
I. BACKGROUND
In approximately 2007, state and federal authorities created a joint task force to
investigate Lock’s suspected criminal activity, which involved, among other things,
robbing and murdering drug dealers and operating a prostitution ring. In 2007, the task
force’s efforts resulted in four criminal cases being filed in state and federal court. First,
in July 2007, the State of Wisconsin charged Lock with kidnapping and possession of
cocaine with intent to deliver. At the same time, the United States charged him with 20
counts of mail and wire fraud. Later, in October 2007, the state charged Lock with two
counts of first-degree intentional homicide. Those charges were consolidated with the
pending state case involving the kidnapping and drug charges. Finally, in December
2007, the state charged Lock with ten counts arising out of allegations that he and two
codefendants operated a prostitution ring in the Midwest.
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In July 2008, the state tried Lock on the homicide, kidnapping, and drug charges.
The jury found him guilty on all counts. The court sentenced him to two consecutive life
sentences for the homicides and to consecutive sentences on the kidnapping and drug
charges.
When Lock was sentenced on these charges, both the federal case against him
and the state prostitution case were in pretrial stages. In November 2008, the federal
government took Lock into custody for trial on the federal charges, which began in
December 2008. He was convicted and remained in federal custody until February 12,
2010, when he was sentenced.
During the approximately 14 months in which Lock was in federal custody,
prosecutors in the prostitution case attempted to have him returned to state custody for
proceedings relating to those charges. In early 2009, the state issued a writ of habeas
corpus ad prosequendum to the federal authorities, asking them to produce Lock in
state court for a pretrial hearing. But the federal authorities informed the state that they
would not honor the writ or transfer Lock into state custody until after he was sentenced
on the federal charges. Given the federal government’s position, prosecutors asked the
state court to adjourn proceedings in the prostitution case, which it did.
In July 2009, Lock sought dismissal of the prostitution charges on the ground that
his speedy-trial rights had been violated. The trial court denied the motion, finding that
the delay was attributable to the federal government’s refusal to produce Lock in state
court. The court also determined that there was no foreseeable time in which Lock
would be available for trial, and it severed the charges against him from the charges
against his codefendants.

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On February 12, 2010, Lock was returned to state custody, and proceedings on
the prostitution charges resumed. However, on February 25, 2010, Lock’s counsel
moved to withdraw based on a conflict of interest. The court granted the motion and
appointed Lock new counsel. Lock’s new counsel obtained an adjournment of the trial
so he could prepare. Lock’s trial finally occurred in September 2010.
At trial, much of the state’s evidence consisted of testimony by participants in the
prostitution operation. Part of Lock’s defense was to argue that those witnesses were
lying in exchange for concessions from the state in their own criminal cases. One such
witness, Edward Hankins, testified about the inner workings of the prostitution ring. On
cross-examination, Lock’s counsel elicited the following testimony:
Q.

Let me talk about these—your conversations with Michael Lock.
You actually wrote a letter to the D.A. sayin’ that you want credit to
testify against Michael Lock, correct?

A.

Yes, I wrote the district attorney.

Q.

And you told—

A.

I told him that I would be willin’ to testify if he needed me against
both Mike Lock and my sister as well as the other girls.

Q.

And you want that for consideration and assistance in your existing
sentence, correct?

A.

None of that was ever promised to me. None of that was ever
discussed between me and the district attorney.

Q.

My question is in the letter that you wrote to the district attorney you
asked him—you told him you’re willing to testify and you wanted
consideration for that testimony in your sentence. That’s what you
wanted, right?

A.

Yes.

Q.

Now, remind me again, [you have] ten criminal convictions, correct?

A.

That’s correct.
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ECF No. 10-5 at 265–66.
The jury convicted Lock on all counts, and the court sentenced him to 28 years of
initial confinement and 20 years of extended supervision. On direct review, Lock raised
two arguments that are relevant to his federal habeas petition. First, he argued that the
delay in bringing him to trial violated his speedy-trial rights. Second, he argued that the
prosecutor committed misconduct by failing to say something when Hankins testified
that the district attorney had not promised him anything in exchange for his testimony.
Lock argued that the prosecutor had a duty to speak up because, a few months after
Hankins testified, the prosecutor supported Hankins’ motion for a sentence reduction in
his own criminal case.
The Wisconsin Court of Appeals rejected Lock’s arguments and affirmed his
conviction. With respect to the speedy-trial issue, the court reasoned that although the
delay was lengthy and presumptively prejudicial, it was not caused by the state. Instead,
it was caused by the federal government’s refusal to produce Lock for trial. Further, the
court determined that the delay was not prejudicial. The court observed that, during the
delay, Lock was already serving life sentences for the homicides, and thus the delay did
not result in additional custody. The court also rejected Lock’s argument that he was
prejudiced by the delay because the state was able to use the additional time to
convince witnesses to testify against him. The court observed that Lock presented “no
evidence that the fourteen-month period contributed in any way to his co-defendants’
decisions to testify against him.” ECF No. 10-3 at 164.
The court of appeals also rejected Lock’s argument that the prosecutor
committed misconduct by remaining silent when Hankins testified that he had not been

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promised anything in exchange for his testimony. Lock argued that the prosecutor’s
remaining silent was equivalent to allowing the witness to give testimony that the
prosecutor knew was false. That was so, Lock argued, because the prosecutor likely
knew that he intended to grant Hankins concessions for his testimony against him. The
court rejected this argument because Hankins already testified that he hoped to gain
concessions through his testimony and because there was no evidence that the
prosecutor knew at trial that he intended to grant Hankins concessions for his testimony.
After the court of appeals issued its decision, Lock sought review by the
Wisconsin Supreme Court, which was denied. Lock then filed his federal habeas
petition. His initial petition raised the speedy-trial and prosecutorial-misconduct claims
that he had exhausted in state court. Later, Lock moved for permission to file an
amended petition adding claims of ineffective assistance of trial and appellate counsel,
and a second claim of prosecutorial misconduct. Because Lock had not exhausted
these claims in state court, Lock asked me to stay the petition under Rhines v. Weber,
544 U.S. 269 (2005), while he returned to state court to exhaust. I granted both the
motion to file an amended petition and the motion to stay. However, after the stay had
been in place for many years without Lock’s having initiated state-court proceedings, I
lifted the stay and ordered Lock to file a brief in support of his petition. In response to
my order, Lock filed a one-page brief in which he asks me to review “the last court’s
decision” to determine whether it was contrary to, or an unreasonable application of,
clearly established federal law as determined by the Supreme Court of the United
States. See ECF No. 36. The respondent filed a brief in opposition to the petition in

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which he addressed the two claims that Lock had exhausted in state court. Lock did not
file a reply brief.
I will construe Lock’s one-page brief as incorporating the arguments his appellate
counsel made in her briefs in the Wisconsin Court of Appeals concerning the speedytrial and prosecutorial-misconduct claims. Because Lock does not develop legal
arguments in support of his ineffective-assistance claims or his second prosecutorialmisconduct claim, I deem them forfeited and will reject them without further discussion.
See Pole v. Randolph, 570 F.3d 922, 937 (7th Cir. 2009) (failure to develop argument in
support of habeas claim in the district court results in forfeiture). 1
II. DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) applies to
a habeas petition filed by a person in custody pursuant to a judgment of a state court.
See 28 U.S.C. § 2254. It contains a deferential standard of review that prevents a
federal court from granting the writ with respect to any claim that was adjudicated on the
merits in state court unless the petitioner shows that the adjudication of the claim
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 was based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding. Id. § 2254(d). The Wisconsin Court of

Because Lock did not exhaust his ineffective-assistance claims or his second
prosecutorial-misconduct claim, the amended petition is technically a “mixed” petition
under Rose v. Lundy, 455 U.S. 509 (1982). Although federal courts cannot grant relief
on claims that appear in a mixed petition, such claims may be denied on the merits. See
28 U.S.C. § 2254(b)(2). For the reasons stated in this opinion, Lock is not entitled to
relief on any of the claims that appear in the amended petition, and therefore I will deny
the petition on the merits rather than dismiss it as mixed.

1

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Appeals adjudicated Lock’s speedy-trial and prosecutorial-misconduct claims on the
merits, and therefore AEDPA’s standard of review applies.
A.

Speedy Trial
The Sixth Amendment affords a criminal defendant a right to a speedy trial. See,

e.g., Barker v. Wingo, 407 U.S. 514, 515 (1972). The Supreme Court has declined to
create bright-line rules governing this right. Id. at 522–30. Instead, courts confronted
with speedy-trial claims must balance four factors: the length of the delay in bringing the
defendant to trial, the reason for it, the defendant’s assertion of his right, and prejudice
to the defendant. Id. at 530.
In adjudicating Lock’s speedy-trial claim, the Wisconsin Court of Appeals applied
this four-factor balancing test. It concluded that although the delay was lengthy and
Lock had asserted his speedy-trial rights, the reason for the delay, coupled with the lack
of prejudice to Lock, prevented the delay from violating the Sixth Amendment. This
conclusion was not contrary to, or an unreasonable application of, clearly established
federal law as determined by the Supreme Court of the United States. Nor was it based
on an unreasonable determination of the facts.
The reason for the delay, as the court of appeals observed, was the federal
government’s refusal to produce Lock for proceedings in state court until he had been
sentenced on his federal convictions. So long as this refusal was not orchestrated by
state prosecutors, it would have fully justified the delay. See United States v.
Richardson, 780 F.3d 812, 816–17 (7th Cir. 2015) (recognizing that waiting for a
separate sovereign to finish prosecuting the defendant is a valid reason for delay). In
state court, Lock argued that because all four of his criminal cases arose out of a joint

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federal-state task force, the state must have been responsible for the federal
government’s refusal to produce him sooner. But the state court determined that,
although the criminal cases had a common origin in the joint task force, Lock had not
shown that state prosecutors controlled the federal government’s decision to retain
custody until he had been sentenced on the federal crimes. That determination was not
unreasonable. Lock produced no evidence suggesting that, as part of the joint task
force, the state had a say in the federal government’s custody determinations. To the
contrary, the record showed that state prosecutors attempted to have Lock produced in
state court by serving a writ of habeas corpus ad prosequendum on the federal
authorities, which those authorities refused to honor.
The state court also determined that Lock had not suffered prejudice because of
the delay. For purposes of the right to a speedy trial, prejudice means things such as
unnecessary pretrial incarceration, increasing the anxiety and concern of the accused,
and impairing the defense. See Barker, 407 U.S. at 532. Here, the court of appeals
correctly found that because Lock was already serving two life sentences during the
delay occasioned by the federal prosecution, he could not have suffered prejudice in the
form of unnecessary pretrial incarceration. Lock did not contend that the delay in
bringing him to trial on the prostitution crimes caused him anxiety or concern, so this
form of prejudice was not a factor.
In state court, Lock did argue that his defense was impaired because, during the
delay, the state was able to convince additional witnesses to testify against him. The
court of appeals rejected this argument on the ground that Lock had not shown that the
delay contributed to his co-defendants’ decisions to testify against him. This

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determination by the state court was not unreasonable. Moreover, even if the delay
gave the state more time to convince witnesses to testify against Lock, the resulting
prejudice would not have resulted in a speedy-trial violation. The speedy-trial factors
constitute a balancing test, not a rigid formula. See Barker, 407 U.S. at 530. And here,
as I have discussed, another factor—the reason for the delay—strongly supported the
state, for the state could not have compelled the federal government to produce Lock
for trial. That factor outweighs any prejudice Lock may have suffered from the state’s
having additional time to prepare its case.
For these reasons, Lock is not entitled to relief on his speedy-trial claim.
B.

Prosecutorial Misconduct
Lock brings a claim for prosecutorial misconduct based on the prosecutor’s

remaining silent when Hankins testified on cross-examination that the district attorney
had not promised him anything in exchange for his testimony. Lock claims that the
prosecutor failed to correct testimony that the prosecutor knew was false, in violation of
the Due Process Clause of the Fourteenth Amendment. See Napue v. Illinois, 360 U.S.
264, 269 (1959).
The primary defect in Lock’s claim is that there is no evidence that Hankins
testified falsely. Hankins testified that he wrote a letter to the district attorney in which he
said he was willing to testify against Lock and others and that he “wanted consideration
for that testimony in [his] sentence.” ECF No. 10-5 at 265–66. Hankins also testified
that, as of the time of Lock’s trial, the district attorney had not promised him any such
consideration. On direct appeal, the state court determined that Lock produced no
evidence showing that, contrary to Hankins’ statements at trial, the prosecutor had

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promised him consideration in exchange for his testimony. See ECF No. 10-3 at 173 of
271. More precisely, the state court determined that there was not even evidence that
the prosecutor knew at trial that he would later grant Hankins consideration for his
testimony. Id. Clearly, if the prosecutor did not know that he intended to grant Hankins
consideration, Hankins’ testimony could not have been false, and the prosecutor could
not have had a duty to correct the testimony. These factual determinations by the court
of appeals were not unreasonable, and therefore Lock is not entitled to habeas relief on
his claim of prosecutorial misconduct.
III. CONCLUSION
For the reasons stated, IT IS ORDERED that Michael Lock’s petition for a writ of
habeas corpus is DENIED. The Clerk of Court shall enter final judgment. Pursuant to
Rule 11 of the Rules Governing § 2254 Cases, I find that the petitioner has not made
the showing required by 28 U.S.C. § 2253(c)(2), and therefore I will not issue a
certificate of appealability.
Dated at Milwaukee, Wisconsin, this 4th day of August, 2021.

s/Lynn Adelman
LYNN ADELMAN
District Judge

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