Johnson v. Humphreys

Filing 38

DECISION AND ORDER signed by Magistrate Judge Nancy Joseph. IT IS ORDERED that the petitioner's petition for a writ of habeas corpus (Docket # 1 ) is DENIED. (cc: all counsel, petitioner)(asc) (Main Document 38 replaced with corrected order on 11/28/2017) (asc).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DONELLE L. JOHNSON,
Petitioner,
v.

Case No. 15-CV-121

ROBERT HUMPHREYS,
Respondent.
DECISION AND ORDER
Donelle L. Johnson, a prisoner in Wisconsin custody, seeks a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. Johnson was convicted of first degree sexual assault of a child and was
sentenced to sixteen years of imprisonment, consisting of ten years of initial confinement followed
by six years of extended supervision. (Judgment of Conviction, Docket # 1-1 at 26-27.) Johnson
alleges that his conviction and sentence are unconstitutional. For the reasons stated below, the
petition for writ of habeas corpus will be denied.
BACKGROUND
After a bench trial, Johnson was convicted in January 2011 of one count of first degree sexual
assault of a child under thirteen. (State v. Johnson, No. 2013AP697 (Wis. Ct. App. Feb. 21, 2014),
Docket # 1-1 at 4.) The count stemmed from allegations made by M.J. that Johnson had been
sexually assaulting her during her weekend visits to his home since she was seven years old. (Id.)
Following his conviction, Johnson’s appointed postconviction and appellate counsel filed a no-merit
report pursuant to Anders v. California, 386 U.S. 738 (1967) and Wis. Stat. § 809.32. Johnson
submitted a response, and his counsel filed two supplemental no-merit reports. (Id. at 3-4.) The court

of appeals concluded that no arguably meritorious issues existed for an appeal, and affirmed the
conviction on February 21, 2014. (Id. at 4.) Johnson filed a petition for review with the Wisconsin
Supreme Court, which was denied on August 4, 2014. (Petition for Review, Docket # 1-1 at 22.)
Subsequently, Johnson filed this petition for writ of habeas corpus.
STANDARD OF REVIEW
Johnson’s petition is governed by the Antiterrorism and Effective Death Penalty Act
(“AEDPA”). Under AEDPA, a writ of habeas corpus may be granted if the state court decision on
the merits of the petitioner’s claim (1) was “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States,” 28
U.S.C. § 2254(d) (1); or (2) “was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding,” 28 U.S.C. § 2254(d)(2).
A state court’s decision is “contrary to . . . clearly established Federal law as established by
the United States Supreme Court” if it is “substantially different from relevant [Supreme Court]
precedent.” Washington v. Smith, 219 F.3d 620, 628 (7th Cir. 2000) (quoting Williams v. Taylor, 529
U.S. 362, 405 (2000)). The court of appeals for this circuit recognized the narrow application of the
“contrary to” clause:
[U]nder the “contrary to” clause of § 2254(d)(1), [a court] could grant a writ of habeas
corpus . . . where the state court applied a rule that contradicts the governing law as
expounded in Supreme Court cases or where the state court confronts facts materially
indistinguishable from a Supreme Court case and nevertheless arrives at a different
result.
Washington, 219 F.3d at 628. The court further explained that the “unreasonable application of”
clause was broader and “allows a federal habeas court to grant habeas relief whenever the state court

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‘unreasonably applied [a clearly established] principle to the facts of the prisoner’s case.’” Id.
(quoting Williams, 529 U.S. at 413).
To be unreasonable, a state court ruling must be more than simply “erroneous” and perhaps
more than “clearly erroneous.” Hennon v. Cooper, 109 F.3d 330, 334 (7th Cir. 1997). Under the
“unreasonableness” standard, a state court’s decision will stand “if it is one of several equally
plausible outcomes.” Hall v. Washington, 106 F.3d 742, 748-49 (7th Cir. 1997). In Morgan v. Krenke,
the court explained that:
Unreasonableness is judged by an objective standard, and under the “unreasonable
application” clause, “a federal habeas court may not issue the writ simply because that
court concludes in its independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or incorrectly. Rather, that
application must also be unreasonable.”
232 F.3d 562, 565-66 (7th Cir. 2000) (quoting Williams, 529 U.S. at 411), cert. denied, 532 U.S. 951
(2001). Accordingly, before a court may issue a writ of habeas corpus, it must determine that the
state court decision was both incorrect and unreasonable. Washington, 219 F.3d at 627.
ANALYSIS
Johnson alleges that his custody is unlawful on the following grounds: (1) insufficient
evidence to support the conviction; (2) ineffective assistance of trial counsel; and (3) the trial court
erroneously admitted other acts evidence. (Habeas Petition, Docket # 1 at 6-8.) I will address each
argument in turn.
1.

Sufficiency of the Evidence

Johnson argues there was insufficient evidence to sustain his conviction for first degree sexual
assault of a child. The Due Process Clause of the Fourteenth Amendment “protects the accused
against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute

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the crime for which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). When insufficiency of
evidence is asserted as the basis for a habeas petition, the petitioner must show “‘upon the record
evidence adduced at the trial no rational trier of fact could have found proof beyond a reasonable
doubt.’” Cabrera v. Hinsley, 324 F.3d 527, 533 (7th Cir. 2003) (citing Jackson v. Virginia, 443 U.S. 307,
319, 324 (1979)). The inquiry does not require the federal habeas court to “ask itself whether it
believes that the evidence at trial established guilt beyond a reasonable doubt.” Jackson, 443 U.S. at
319 (citing Woodby v. INS, 385 U.S. 276, 282 (1966)). Instead, the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. Id.
A federal habeas court determines the sufficiency of the evidence in reference to the
substantive elements of the criminal offense as defined by state law. See Jackson, 443 U.S. at 324 n.
16. Under Wisconsin law, a defendant is guilty of first degree sexual assault of a child, Wis. Stat. §
948.02(1)(e), if the State proves that the defendant had sexual contact or sexual intercourse with a
person who has not attained the age of 13 years. Wis. JI-Crim 2102E (2011).
In this case, in considering Johnson’s sufficiency argument, the Wisconsin Court of Appeals
used a standard consistent with Jackson. While the court of appeals did not cite to Jackson, it cited to
State v. Poellinger, 153 Wis.2d 493, 451 N.W.2d 752 (1990), which pronounces a state law standard
that is the functional equivalent to Jackson:
[I]n reviewing the sufficiency of the evidence to support a conviction, an appellate court
may not substitute its judgment for that of the trier of fact unless the evidence, viewed
most favorably to the state and the conviction, is so lacking in probative value and force
that no trier of fact, acting reasonably, could have found guilt beyond a reasonable
doubt. If any possibility exists that the trier of fact could have drawn the appropriate
inferences from the evidence adduced at trial to find the requisite guilt, an appellate

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court may not overturn a verdict even if it believes that the trier of fact should not have
found guilt based on the evidence before it.
153 Wis. 2d at 507, 451 N.W.2d at 757–58 (1990) (internal citation omitted). As such, the court of
appeals identified the correct governing legal rule. Thus, the only issue before me on habeas review
is whether the state court unreasonably applied that rule to the facts of Johnson’s case or
unreasonably determined the facts in light of the evidence presented. In making that determination,
it is important to recall that in a federal habeas corpus proceeding, the court’s review is tempered by
AEDPA’s deferential constraints.
In finding Johnson’s sufficiency of the evidence argument lacked merit, the court of appeals
considered the fact that the State needed to prove two elements: (1) that Johnson had sexual contact
with M.J. and (2) that M.J. had not yet attained the age of thirteen years at the time of the sexual
contact. (Docket # 1-1 at 8.) The court of appeals considered the evidence presented at trial and
found ample evidence of guilt. (Id. at 10.) Specifically, the court of appeals considered the fact that
M.J. testified that she was born on October 5, 1999 and that when she was ten years old, Johnson
got drunk and approached her while she was sleeping, removed her pants, took off his clothes, and
“put his stuff in [her] lower part.” (Id. at 8-9.) M.J. also testified that Johnson had similarly assaulted
her approximately ten times, and the assaults began when she was seven years old. (Id. at 9.)
The court of appeals considered the fact that while M.J. could not testify precisely when the
sexual assault occurred, she stated that it was cold outside. (Id.) The court of appeals also considered
the testimony of a nurse who first interviewed M.J. on January 28, 2010 as part of the response to
a report that M.J.’s mother was physically abusing her and that during the examination, M.J.
disclosed ongoing sexual abuse by Johnson. (Id.) The court of appeals considered the testimony of

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an expert in the dynamics of child sexual assault who testified as to the reasons why children
sometimes delay disclosing sexual assault and may be inconsistent when describing events. (Id.)
The court of appeals also considered an audiovisual recording of a statement M.J. gave to
police on January 28, 2010, in which M.J. stated that on the previous Saturday night, during a
weekend visit with Johnson in his home, Johnson took off her clothes and “put his stuff in [her’s].”
(Id.) After M.J. disclosed Johnson’s sexual abuse, she described physical abuse by her mother. (Id.)
M.J. then explained that she wanted to live with Johnson because her mother’s home was “a terrible
place,” and that Johnson had promised not “to do that stuff anymore.” (Id.) The court of appeals also
considered a recorded statement M.J. gave to a policewoman in May 2006 in which M.J. said that
Johnson had touched her “puddin’,” which she explained is the part of her body she uses to go to
the bathroom. (Id.)
The court of appeals also considered the testimony of Johnson’s girlfriend, LaBrittany B.,
who testified that on the weekend of January 22, 2010, she was home with Johnson while his
children and M.J. were visiting. (Id. at 10.) LaBrittany B. testified that Johnson drank no alcoholic
beverages and that at no time during the night did Johnson get out of the bed that she shared with
him. (Id.) The court of appeals considered the trial court’s finding that LaBrittany B. lied to protect
Johnson because he is the father of her son. The trial court found M.J. to be credible as she had no
motive to lie and because she had made her most recent disclosure at a time when she hoped to be
taken from her physically abusive mother and placed with Johnson. The court of appeals also noted
that the trial court recognized that “the details are all over the map,” but found that M.J. was
“consistent in one thing; and that is that the person that she calls her daddy, Donelle Johnson, puts
his stuff in her private area.” (Id.)
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Johnson argues that the evidence was insufficient to support his conviction because he was
charged with an assault that occurred in January and M.J. testified that no incident occurred in
January. (Petitioner’s Br. at 2, Docket # 34.) Johnson further argues that M.J. testified that she did
not know what it means to be drunk and that no assault ever occurred on the couch. (Id.) Finally,
Johnson argues that the trial court entered into evidence a video from 2010 in which M.J. stated that
Johnson got drunk and assaulted her on the dining room couch in January. (Id. at 2-3.) Johnson
argues this video was inadmissible under Wis. Stat. § 908.08(3) and (5). (Petitioner’s Reply Br. at 4,
Docket # 29.) Wis. Stat. § 908.08 addresses the admission of audiovisual recordings of statements
of children and pursuant to § 908.08(5), if such evidence is admitted, the party who has offered the
statement into evidence may call the child to testify immediately after the statement is shown to the
trier of fact. Johnson argues that the statute requires the videotape to precede direct and crossexamination and in his case, the videotape was played after M.J. testified. (Id.)
Johnson has not shown the court of appeals’ decision was an unreasonable application of
Jackson. As to the timing of the assault, contrary to Johnson’s assertion, M.J. did not testify that no
assault occurred in January. Rather, she testified that she did not know when the assault occurred,
but that it was cold outside at the time. (Court Trial Day 1 at 21-22, Docket # 28-10.) The State need
not prove the month of the assault. Rather, the State need only prove that sexual contact occurred
and that M.J. had not yet reached the age of 13 at the time of the assault.
Further, the case turned on M.J.’s credibility. The court of appeals considered the evidence
M.J. presented, including the inconsistencies in her statement, and found the trial court did not err
in finding Johnson guilty. M.J. testified that Johnson “touched [her] lower part with his stuff.”
(Docket # 28-10 at 22.) Although the facts surrounding the assaults were inconsistent, M.J. was
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consistent in her testimony regarding the sexual contact between herself and Johnson. The State also
presented evidence from a forensic interview program supervisor at the Child Protection Center with
Children’s Hospital of Wisconsin, Liz Ghilardi, who was qualified as an expert in the area of child
sexual abuse dynamics. (Court Trial Day 2 at 20-23, Docket # 28-11.) Ghilardi testified that it is
common for children to have difficulty being consistent when talking about multiple incidents of
abuse because children are not able to differentiate between events and the child’s answers can
depend on how the question is asked or understood by the child. (Id. at 27.)
Johnson also argues that the trial court improperly admitted M.J.’s audiovisual statement
under Wis. Stat. § 908.08. Specifically, Johnson argues that playing the videotape after M.J. testified,
rather than before, as stated in § 908.08(5), was error. (Docket # 29 at 4.) As an initial matter, state
court evidentiary errors do not normally entitle a defendant to habeas relief. Anderson v. Sternes, 243
F.3d 1049, 1053 (7th Cir. 2001). Habeas relief is only appropriate if an erroneous evidentiary ruling
was so prejudicial that it compromised the petitioner’s due process right to a fundamentally fair trial.
Id. As this was a bench trial, the trial court noted that he had already viewed the videotape prior to
trial in determining its admissibility and believed it was unnecessary to play the videotape again
during the trial. (Docket # 28-10 at 55-56.) Thus, even if the court erred in its ruling under Wis. Stat.
§ 908.08, Johnson has not shown that his due process rights were violated.
Viewing the evidence in the light most favorable to the prosecution, as I must, I cannot
conclude that no rational trier of fact could have found the essential elements of first degree sexual
assault of a child beyond a reasonable doubt. As such, Johnson cannot show that the court of appeals
unreasonably applied Jackson to the facts of his case or unreasonably determined the facts in light of
the evidence presented.
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2.

Ineffective Assistance of Counsel

Johnson argues that his trial counsel was ineffective in multiple ways: (1) counsel failed to
hire an expert witness regarding whether he fit the characteristics of a pedophile and to challenge the
suggestiveness of M.J.’s police interview; (2) counsel failed to object to the State’s cross-examination
of LaBrittany B. and to the State’s closing argument; (3) counsel failed to move to suppress hearsay
statements; (4) counsel failed to move to suppress prejudicial evidence; (5) counsel failed to call
character witnesses; (6) counsel improperly advised Johnson to waive his right to testify; (7) counsel
failed to object to the admission of M.J.’s videotaped statement; and (8) counsel failed to offer
testimony that Johnson offered to submit to a DNA test. (Petitioner’s Br., Docket # 2.)
2.1

Legal Standard

The clearly established Supreme Court precedent for ineffective assistance of counsel claims
is set forth in Strickland v. Washington, 466 U.S. 668 (1984). To establish ineffective assistance of
counsel, Johnson must show both “that counsel’s performance was deficient” and “that the deficient
performance prejudiced the defense.” Id. at 687. To satisfy Strickland’s performance prong, the
defendant must identify “acts or omissions of counsel that could not be the result of professional
judgment.” United States ex rel. Thomas v. O’Leary, 856 F.2d 1011, 1015 (7th Cir. 1988) (citing
Strickland, 466 U.S. at 690). “The question is whether an attorney’s representation amounted to
incompetence under ‘prevailing professional norms,’ not whether it deviated from best practices or
most common custom.” Harrington v. Richter, 131 S. Ct. 770, 788 (2011) (quoting Strickland, 466 U.S.
at 689). A reviewing court must seek to “evaluate the conduct from counsel’s perspective at the
time.” Strickland, 466 U.S. at 689. We “must indulge a strong presumption that counsel’s conduct

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falls within a wide range of reasonable professional assistance,” id., and “strategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually unchallengeable,”
id. at 690.
To establish prejudice, it is “not enough for the defendant to show that his counsel’s errors
had some conceivable effect on the outcome of the [trial].” Hough v. Anderson, 272 F.3d 878, 891 (7th
Cir. 2001). A petitioner must show “that there is a reasonable probability that, but for counsel’s
errors, the result of the [trial] would have been different.” Strickland, 466 U.S. at 694. This does not
mean that the defendant must show that “counsel’s deficient conduct more likely than not altered
the outcome in the case.” Id. at 693. Rather, a “reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694. Making this probability determination requires
consideration of the totality of the evidence before the jury. Id. at 695. A “verdict or conclusion only
weakly supported by the record is more likely to have been affected by errors than one with
overwhelming record support.” Id. at 696.
A court deciding an ineffective assistance claim need not approach the inquiry “in the same
order or even to address both components of the inquiry if the defendant makes an insufficient
showing on one.” Id. at 697. “[A] court need not determine whether counsel’s performance was
deficient before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed. Courts should strive to ensure that
ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice
system suffers as a result.” Id.
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Again, the Wisconsin Court of Appeals identified the correct governing legal rule; as such,
the only issue me before is whether the state court unreasonably applied Strickland to the facts of
Johnson’s case or unreasonably determined the facts in light of the evidence presented.
2.2

Failure to Hire an Expert Witness

Johnson argues that his trial counsel was ineffective for failing to hire an expert witness to
conduct an evaluation pursuant to State v. Richard A.P., 223 Wis. 2d 777, 589 N.W.2d 674 (Ct. App.
1998). Johnson argues that his appellate counsel referred Johnson for a Richard A.P. evaluation and
the doctor offered the opinion that Johnson did not appear to be sexually attracted to children of any
age or gender. (Docket # 2 at 2.) The court of appeals noted that pursuant to Richard A.P., a
defendant is permitted to offer expert testimony that he or she does not exhibit character traits
consistent with a sexual disorder such as pedophilia. (Docket # 1-1 at 15.) The court of appeals held
that Johnson’s appellate counsel explored the issue with trial counsel, and trial counsel explained
that he did hire an expert, but the expert’s testimony would not have been helpful to Johnson. (Id.
at 16.)
Johnson’s appellate counsel submitted a report from the expert he retained for postconviction
and appellate proceedings. (Id.) While the report stated that Johnson had “normal” adult
heterosexual arousal/interests and did not appear to be sexually attracted to children (of any
age/gender), the report also stated that Johnson’s score on the psychopathy checklist was “elevated,”
meaning that “despite all of the positive things noted above, he would be considered a ‘risk’ for
having committed a sexual crime.” (Answer to Habeas Petition, Exh. D, Docket # 28-4 at 11-12.)
The report also stated that “the Abel Screen, a well-respected measure of sexual interest, places Mr.
Johnson in the Highest Risk category of having committed a sexual offense.” (Id. at 12.) The expert
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stated then, as follows: “The bottom line? The results of this Richard A.P. evaluation would not be
helpful in his appeal. It is highly unlikely that the results of a similar evaluation, if conducted at the
time of his trial, would have been any different.” (Id.)
The court of appeals, thus, found that further appellate proceedings as to this issue would
have lacked arguable merit. (Docket # 1-1 at 16.) Johnson has not shown that the court of appeals’
finding on this ground ran afoul of Strickland. Johnson cites only the first page of the expert’s report
(regarding his sexual interests), ignoring the expert’s “bottom line” conclusion. Given the expert’s
conclusion that Johnson was a “risk” for having committed a sexual crime, was in the highest risk
category for having committed a sexual offense despite his denials, and that the results of the Richard
A.P. evaluation would not have been helpful at the time of trial, Johnson has not shown his counsel
was ineffective in failing to present expert testimony pursuant to Richard A.P.
Johnson also argues that his trial counsel was ineffective for failing to present expert
testimony regarding police suggestibility during a 2006 interview of M.J. (Docket # 2 at 2.) Johnson
argues that during this interview, M.J. stated that Johnson squeezed her arm, to which the officer
suggested that Johnson must have somehow hurt her private parts. (Id.) Although Johnson raised
this argument in response to his counsel’s no-merit report (Answer to Habeas Petition, Exh. C,
Docket # 28-3 at 13-14), the court of appeals did not specifically address this issue. Thus, I will
review this aspect of Johnson’s ineffective assistance of counsel claim de novo. See Warren v. Baenen,
712 F.3d 1090, 1098 (7th Cir. 2013) (“Because the state courts did not reach the merits, AEDPA
deference did not apply and de novo review was proper.”). Even with de novo review, however,
Johnson’s argument fails. Johnson’s appellate counsel hired an expert to review M.J.’s recorded
statement for impermissibly suggestive interview techniques, and the expert found no major errors
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were made by the police officer conducting the interview. (Docket # 28-4 at 11.) Thus, Johnson has
not shown that counsel was ineffective for failing to hire an expert to challenge the police officer’s
interview of M.J. if an expert would not provide helpful testimony.
2.3

Failure to Object to State’s Cross-Examination and Closing Argument

Johnson argues that his trial counsel was ineffective for failing to object to the State’s
misconduct, specifically, he argues the State improperly cross-examined LaBrittany B. regarding
Johnson’s prior alcohol usage and the State improperly misstated during closing argument that
Johnson knew about allegations made against him in 2006 that M.J. disclosed in a medical report.
(Docket # 2 at 3.) As to the first argument, the court of appeals found that the State’s inquiries as to
Johnson’s alcohol consumption was directly related to the testimony and allegations in the case and
thus was an appropriate area of inquiry, citing Wis. Stat. § 906.11(2) (“A witness may be crossexamined on any matter relevant to any issue in the case, including credibility.”) (Docket # 1-1 at
14.) Thus, trial counsel had no obligation to allege prosecutorial misconduct in connection with the
cross-examination of LaBrittany B. because the argument would have been meritless. (Id.)
Again, Johnson has not shown the court of appeals unreasonably applied Strickland. Johnson
is correct that M.J. did not testify during trial that Johnson was drinking prior to assaulting her.
Rather, it appears that she stated this during the January 2010 videotaped interview with police,
which was admitted into evidence. (Answer to Habeas Petition, Exh. B, Docket # 28-2 at 28.)
During trial, M.J. testified that Johnson did not drink alcohol while assaulting her. (Docket # 28-10
at 28.) Given M.J.’s prior statement that Johnson was drinking prior to assaulting her, Johnson’s
drinking habits were relevant to the case. Further, on direct, LaBrittany B. testified that Johnson was
not drinking on the weekend of January 22, 2010. (Docket # 28-11 at 50-51.) Thus, it was
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appropriate for the State to then explore this issue on cross-examination. (Id. at 58.) Johnson has not
shown the court of appeals erred as to this first issue.
As to the second issue, Johnson argues that his trial counsel was ineffective for failing to
object to the State’s closing argument when the prosecutor misstated that Johnson knew about
allegations made against him in 2006. (Docket # 2 at 3.) As the court of appeals explained, Johnson
argues that the State improperly speculated about why Johnson allowed M.J. to continue visiting
him after she accused him of sexual assault in 2006, implying that he was aware of the accusation
at that time. (Docket # 1-1 at 14-15.) At sentencing, the State took the position that Johnson “might
well be being truthful” when he denied knowing about the allegations in 2006. (Id. at 15.) Johnson
further argues that the State argued that M.J. told an examining physician in 2006 about Johnson’s
assaults when physician’s notes from 2006 show that, in fact, the doctor received the information
about Johnson’s assaults from a third party. (Id.)
The court of appeals, citing State v. Mayo, 2007 WI 78, ¶ 43, 301 Wis. 2d 642, 734 N.W.2d
115, stated that when a defendant alleges that a prosecutor’s statements and arguments constituted
misconduct, the test applied is whether the statements so infected the trial with unfairness as to make
the resulting conviction a denial of due process. (Id.) This test articulated by the court of appeals is
consistent with Supreme Court law. See Darden v. Wainwright, 477 U.S. 168, 181 (1986) (“The
relevant question is whether the prosecutors’ comments ‘so infected the trial with unfairness as to
make the resulting conviction a denial of due process.’”) (internal citation omitted). The court of
appeals found that the prosecutor’s “speculation and imprecise closing remarks during this bench
trial” did not undermine the fairness of the trial. (Docket # 1-1 at 15.) The court of appeals noted that

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arguments of counsel are not evidence and presumed the trial court, as fact finder, knew and applied
this well-settled principle. (Id.)
Johnson does not attempt to explain how the prosecutor’s statements and arguments so
infected the trial with unfairness as to deny him due process. The court of appeals correctly found
that the State’s closing arguments are not evidence and even if imprecise, the statements did not “so
infect” this bench trial with unfairness as to constitute a denial of due process. He has not shown that
the court of appeals’ unreasonably applied Strickland.
2.4

Failure to Move to Suppress Hearsay Statements

Johnson argues that during trial the State introduced into evidence a medical report that
contained a statement made by M.J.’s mother, who had not testified at trial, stating that Johnson
gave her a sexually transmitted disease and assaulted M.J. (Docket # 2 at 4.) Johnson argues that
his trial counsel was ineffective for failing to object to these statements. The court of appeals, in
addressing this issue, noted that Johnson referred the court of appeals to a portion of the sentencing
transcript in which the prosecutor described a statement made by M.J.’s mother in 2006 when she
reported M.J.’s allegation of sexual abuse. (Docket # 1-1 at 18.) The court of appeals found that the
rules of evidence were inapplicable to sentencing proceedings and furthermore, evidentiary errors
in a bench trial are harmless unless they probably changed the outcome of the trial. (Id.) The court
of appeals further found that the record was clear that the trial court’s finding of guilt did not turn
on statements made by M.J.’s mother in 2006; rather, the trial court convicted Johnson because it
found M.J. credible, and believed her. (Id.)
Johnson argues that this is not a sentencing issue because the hearsay statement was entered
into evidence during trial. (Docket # 34 at 7.) Johnson further argues that this hearsay statement did
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influence the trial court’s finding of guilt because the court stated, in finding M.J.’s testimony
credible, that she was consistent in one thing, that Johnson “put his private on her private” and that
was “consistent when you go back all the way to 2006.” (Id. at 8.) Johnson argues that it was not
until sentencing that the trial court was made aware that this statement about the alleged abuse was
made by M.J.’s mother, not M.J. (Id. at 8-9.)
Johnson refers to a medical report dated May 2, 2006 which states that M.J. “disclosed to her
mother” that Johnson “put his private on her private.” (Answer to Habeas Petition, Exh. H, Docket
# 28-8 at 83.) The record further states that M.J.’s mother reported that Johnson gave her sexually
transmitted diseases while pregnant. (Id.) Johnson is correct that this report was entered into
evidence during trial. (Docket # 28-11 at 12-13.) However, even assuming the trial court erred in
admitting this record, Johnson cannot show that he was prejudiced by it. Johnson argues that the
trial court was convinced of Johnson’s guilt, at least partly, by the fact that M.J. was consistent in
her statements that Johnson assaulted her, going back to 2006. Johnson argues that the trial court
relied solely on the hearsay record in finding him guilty because the trial court used the phrase “put
his private on her private,” a phrase that came from the medical record.
During sentencing, the State told the court that in 2006, M.J.’s mother reported that M.J. and
two of her sisters were assaulted by Johnson. (Docket # 28-3 at 37.) Johnson takes issue with the
admission of this medical record because he argues that M.J.’s mother is effectively testifying
through this record. However, M.J. testified at trial that Johnson first touched her when she was
seven years old (in 2006). (Docket # 28-10 at 26.) And the trial court made clear during sentencing
that he believed M.J.’s testimony and that M.J.’s mother “[had] no credibility with me.” (Answer
to Habeas Petition, Exh. O, Docket # 28-15 at 26.) Thus, in finding Johnson guilty, the trial court
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was considering the consistency in M.J.’s testimony that she was assaulted repeatedly by Johnson,
dating back to 2006. Any statements made by M.J.’s mother did not weigh in the trial court’s finding
of guilt. For these reasons, Johnson was not prejudiced by the admission of this medical record and
thus is not entitled to habeas relief on this ground.
2.5

Failure to Suppress 2010 Recorded Statement

Johnson argues his trial counsel was ineffective for failing to suppress M.J.’s 2010 recorded
interview with law enforcement. (Docket # 2 at 4.) Johnson argues that M.J. told police that
Johnson was taken by officers before for touching her and her sister inappropriately and that there
was a statement made by M.J.’s sister that Johnson had never touched her inappropriately. (Id.) The
court of appeals’ rejected Johnson’s claim of ineffective assistance, finding that he was not prejudiced
by his trial counsel’s failure to challenge any alleged inaccuracies in M.J.’s recollections about the
aftermath of her 2006 disclosure. (Docket # 1-1 at 12.) The court of appeals found that Johnson’s
counsel thoroughly impeached M.J. and the trial court well understood M.J.’s faulty memory and
inconsistencies in her testimony in finding her credible. (Id. at 13.)
Regarding the portion of the 2010 recorded statement where M.J. told police that Johnson
touched her sister inappropriately, the court of appeals found that M.J.’s “fleeting” reference to a
“long ago” event involving her sister was at worst a harmless error in the bench trial, especially given
the fact that the State had already advised the trial court during pretrial proceedings that M.J.’s sister
alleged in 2006 that Johnson had sexually assaulted her. (Id.) Thus, Johnson was not prejudiced
when the allegation was briefly mentioned during the bench trial. (Id. at 14.)
Finally, the court of appeals found that trial counsel was not ineffective for failing to offer
proof that M.J.’s sister told police in 2010 that Johnson never assaulted her because evidence that
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Johnson did not sexually assault M.J.’s sister was irrelevant to the determination of whether Johnson
sexually assaulted M.J. (Id.)
Johnson has not shown the court of appeals unreasonably applied Strickland in finding he was
not prejudiced by any of these alleged errors by trial counsel. The trial court did consider the
inconsistencies in M.J.’s testimony, noting that the “details are all over the map,” but still believed
her to be credible when she consistently testified that Johnson “puts his stuff in her private area; puts
his private on her private.” (Docket # 28-12 at 28.) Further, because this was a bench trial, I agree
that the reference to an assault allegation by M.J.’s sister did not unduly influence the trial court as
finder of fact. The trial court had already heard this fact during pretrial proceedings and Johnson has
not shown that the trial court considered this inadmissible evidence in finding him guilty. For these
reasons, Johnson is not entitled to habeas relief on this ground.
2.6

Failure to Call Character Witnesses

Johnson argues that his trial counsel was ineffective for failing to call Johnson’s mother or
Johnson’s stepfather as character witnesses. (Docket # 2 at 4.) Johnson states that both his mother
and stepfather stated during sentencing that they believed Johnson was incapable of sexually
assaulting anyone. (Id. at 5.) In a supplement to his no-merit report, Johnson’s appellate counsel
stated that he explored the issue with trial counsel, who told him that at the time of trial, Johnson’s
family was not cooperative with him and therefore he felt that they would not make good witnesses
or offer relevant testimony. (Docket # 28-4 at 8.) Appellate counsel further stated that he spoke to
Johnson about his mother, and Johnson told him that while his mother lived with him, she was not
with Johnson and M.J. at all times, so she could not definitively testify that Johnson did not assault

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M.J. (Id.) Thus, Johnson’s mother’s testimony would have been of little value and defense counsel
strategically decided not to call her as a witness. (Id.)
The court of appeals accepted Johnson’s appellate counsel’s explanation of trial counsel’s
strategic choice not to call Johnson’s mother or stepfather as character witnesses. Johnson does not
challenge the basis for his trial counsel’s strategic choice not to call his family members as character
witnesses and “‘[s]o long as an attorney articulates a strategic reason for a decision that was sound
at the time it was made, the decision generally cannot support a claim of ineffective assistance of
counsel.’” Toliver v. Pollard, 688 F.3d 853, 862 (7th Cir. 2012) (quoting Yu Tian Li v. United States, 648
F.3d 524, 528 (7th Cir. 2011)). Rather Johnson merely asserts that his family was at every court
hearing and that he had strong family support. (Docket # 34 at 10.) Beyond this assertion, however,
Johnson does not argue that the court of appeals’ finding ran afoul of Strickland. Thus, Johnson’s
claim of ineffective assistance of counsel on this ground fails.
2.7

Improperly Advised Johnson to Waive Right to Testify

Johnson argues that his trial counsel improperly advised Johnson not to testify. (Docket #
2 at 5.) The respondent argues that Johnson procedurally defaulted this claim because although he
raised the issue before the Wisconsin Supreme Court, he did not raise the issue in his response to
counsel’s no-merit report. (Resp.’s Br. at 19, Docket # 33.) Before a federal court may consider the
merits of a state habeas petitioner’s claims, the petitioner must exhaust the remedies available to him
in the state courts. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999);
Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004). This involves invoking one complete round of
the normal appellate process, including seeking discretionary review before the state supreme court
to exhaust a claim. McAtee v. Cowan, 250 F.3d 506, 508–09 (7th Cir. 2001).
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Johnson does not contest that he did not present the issue before the court of appeals; rather,
he counters that the court of appeals found the issue and addressed it on its merits. (Docket # 29 at
8.) Johnson is incorrect, however, that the court of appeals found the issue (as Johnson now presents
it) and addressed it on the merits. The court of appeals did not address whether trial counsel was
ineffective in advising Johnson not to testify; rather, the court of appeals addressed whether Johnson
could mount an arguably meritorious challenge to his waiver of the right to testify. (Docket # 1-1
at 10.) Whether Johnson knowingly waived his right to testify is a different issue entirely than
whether his trial counsel provided ineffective assistance of counsel in advising him not to testify.
Thus, I agree that Johnson procedurally defaulted this claim and has offered no cause or prejudice
to overcome the default, nor has he shown that the denial of relief will result in a miscarriage of
justice. Coleman v. Thompson, 501 U.S. 722, 753 (1991) (citing Murray v. Carrier, 477 U.S. 478, 488
(1986)) (finding that a procedural default will bar federal habeas relief unless the petitioner can
demonstrate both cause for and prejudice stemming from that default or he can establish that the
denial of relief will result in a miscarriage of justice).
However, even considering the merits of Johnson’s claim, he cannot show ineffective
assistance of counsel. Johnson argues that he would have testified at trial that the “only reason M.J.
changed the dates up at trial was because she knew Mr. Johnson’s girlfriend was working at this
other time and that Mr. Johnson’s mother wasn’t living in his house at this other time. This was a
way for M.J. to eliminate both defense witnesses out of the picture.” (Docket # 34 at 11.) But
Johnson cannot testify as to what M.J. was thinking when she gave her previous statements and
when she testified at trial and the trial court considered the inconsistencies in M.J.’s testimony. Thus,
Johnson is not entitled to habeas relief on this ground.

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2.8

Failure to Offer Testimony Regarding Offer to Take DNA Test

Johnson argues his trial counsel was ineffective for failing to offer evidence that Johnson
offered to take a DNA test during an interrogation conducted on January 28, 2010 and January 29,
2010. (Docket # 2 at 5.) The court of appeals acknowledged that evidence that a defendant offered
to undergo DNA testing may reflect consciousness of innocence and a defendant may present such
evidence for that purpose under some circumstances. (Docket # 1-1 at 17.) The court of appeals
found, however, that the record did not support Johnson’s claim that he offered to submit to DNA
testing. Appellate counsel submitted recordings of Johnson’s custodial statements to police on
January 28, 2010 and January 29, 2010. (Id.) The court of appeals found that the recordings reflected
Johnson’s “unwavering refusal to undergo DNA testing, despite the interrogating officers’ requests
for such testing and suggestions that such testing might exonerate him.” (Id.)
Johnson argues that he suggested that the officer could use an earlier buccal swab test that
he had taken for a paternity test in the courts, and the officer agreed to “do it that way.” (Docket #
29 at 8.) The recordings were not made part of the record in this habeas case and Johnson asked that
the custodial interviews be included in the record. (Id.) On October 31, 2017, I ordered the
respondent to supplement the record with the recordings of Johnson’s January 28, 2010 and January
29, 2010 custodial interviews. The respondent subsequently provided the recordings. (Docket # 37.)
I listened to the recordings of Johnson’s interview from both days and agree with the court of appeals
that at no point in the interview did Johnson agree to take a DNA test. To the contrary, as the court
of appeals stated, the “recordings reflect Johnson’s unwavering refusal to undergo DNA testing,
despite the interrogating officers’ requests for such testing and suggestions that such testing might
exonerate him.” (Docket # 1-1 at 17.)
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I listened in particular for Johnson’s assertion that he suggested to the officers that they could
use an earlier buccal swab test that he had taken for a paternity test in the courts, and the officers
agreed to “do it that way.” (Docket # 29 at 8.) However, neither interview contains such a statement.
The fact Johnson took paternity tests in relation to several of his children was raised in both
interviews; however, it was raised in the context of establishing whether M.J. was Johnson’s
biological daughter. Johnson never suggested that the past tests could be used to compare to the
DNA profile allegedly found on M.J. Because Johnson never agreed to take a DNA test, his counsel
was not ineffective for failing to raise the issue. Johnson is not entitled to habeas relief on this
ground.
2.9

Failure to Object to Admission of Videotaped Statement

Johnson argues his trial counsel was ineffective for failing to object to the admission at trial
of M.J.’s 2010 videotaped statement. (Docket # 2 at 6.) Pursuant to Wis. Stat. § 908.08(3), the court
“shall admit” an audiovisual recording of an oral statement of a child who is available to testify upon
finding all of the following: (a) that the trial or hearing in which the recording is offered will
commence: 1. Before the child’s 12th birthday . . . (b) that the recording is accurate and free from
excision, alteration and visual or audio distortion; (c) that the child’s statement was made upon oath
or affirmation or, if the child’s developmental level is inappropriate for the administration of an oath
or affirmation in the usual form, upon the child’s understanding that false statements are punishable
and of the importance of telling the truth; (d) that the time, content and circumstances of the
statement provide indicia of its trustworthiness; and (e) that admission of the statement will not
unfairly surprise any party or deprive any party of a fair opportunity to meet allegations made in the
statement.
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The court of appeals found that the trial court considered all of the requirements of §
908.08(3) and found that the requirements were satisfied. The court of appeals further found that the
trial court must admit a videotaped statement that satisfies § 908.08(3). (Docket # 1-1 at 12.) Thus,
Johnson’s trial counsel was not ineffective for conceding the admissibility of the videotape. (Id.) The
trial court did make proper findings under § 908.08(3):
Then Exhibit 10 is the video from 2010 and I am not going to mark the
transcript at this point. I will make the findings under 908.08 with regard to both
Exhibit 8 and 10, that they were recordings before the child’s 12th birthday. And
the trial begins before her 12th birthday. That both recordings are accurate, free
from excision, alteration, and video or audio distortion. She made statements
upon an understanding that false statements are punishable and the importance
of telling the truth and that the time, content, and circumstances of the
statement provide indicia of worthiness and that there was no surprise by the
admission of either one of these statements. And I will receive 8, 9, and 10 into
evidence.
(Docket # 28-10 at 57-58.) Johnson does not argue that the videotape did not meet the requirements
of § 908.08(3); rather, he argues the court should have considered the factors enumerated in State v.
Sorenson, 143 Wis. 2d 226, 421 N.W.2d 77 (1988) and State v. Huntington, 216 Wis. 2d 671, 575
N.W.2d 268 (1998). (Docket # 2 at 6.) However, both Sorenson and Huntington address factors the
court is to consider when assessing evidence under the residual hearsay exception for admission of
a child’s statement. Neither case addresses admissibility under § 908.08(3). Thus, Johnson has not
shown that the court of appeals’ decision ran afoul of Strickland.
2.10

Cumulative Prejudice

Finally, Johnson argues that his trial counsel made multiple errors and the cumulative effect
of those errors should be considered together to determine the possibility of prejudice. (Docket # 2
at 8.) To demonstrate cumulative error, Johnson must establish that “(1) at least two errors were
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committed in the course of the trial; (2) considered together along with the entire record, the multiple
errors so infected the jury’s deliberation that they denied the petitioner a fundamentally fair trial.”
United States v. Allen, 269 F.3d 842, 847 (7th Cir. 2001). Even if Johnson’s trial counsel arguably
committed at least two errors, Johnson has not shown that the errors so infected the trial court’s
finding of fact that he was denied a fundamentally fair trial.
The only arguable errors trial counsel made was in failing to object to M.J.’s remark about
her sister’s allegations of sexual abuse and the admission of M.J.’s mother’s hearsay statements
through M.J.’s medical records. Neither of these records so infected the fact finder’s deliberations
as to deny Johnson a fundamentally fair trial. Again, as this was a bench trial, the fact finder was
already aware of M.J.’s sister’s allegations. Also, the trial court specifically stated that it did not find
M.J.’s mother credible. Rather, the trial court’s finding of guilt rested principally on the credibility
of M.J., and the court found her credible despite inconsistencies in her testimony and lack of
memory. For these reasons, Johnson cannot show cumulative prejudice.
3.

Admission of Other Acts Evidence

At the final pretrial conference, the trial court noted that the State intended to go into
evidence of other sexual assaults between Johnson and M.J. (Docket # 33-1 at 9.) The State
proffered that M.J. first disclosed sexual contact between herself and Johnson in May 2006 and
although there was insufficient evidence to issue criminal charges, there was a forensic interview
from 2006 the State wished to offer into evidence. (Id. at 9-10.) The State offered that the purpose
for which it was offering this evidence was to give the jury context and to show the fact that there
was a particular purpose or plan and common features. (Id. at 11.) The court agreed and admitted
the evidence. (Id. at 12.)
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Johnson challenges a state court evidentiary ruling. As stated above, evidentiary rulings of
state trial courts are normally not subject to habeas review. Dressler v. McCaughtry, 238 F.3d 908, 914
(7th Cir. 2001). In order to claim a right to relief, a petitioner must establish that the incorrect
evidentiary ruling was so prejudicial that it violated his due process right to a fundamentally fair trial,
creating the likelihood that an innocent person was convicted. Id. If the evidence is probative, it will
be very difficult to find a ground for requiring as a matter of constitutional law that it be excluded;
and if it is not probative, it will be hard to show how the defendant was hurt by its admission.
Watkins v. Meloy, 95 F.3d 4, 6–7 (7th Cir. 1996).
Johnson argues that the admission of this evidence violated his rights to due process and a
fair trial because he did not know what types of other acts the State was going to use because M.J.
said that no assaults occurred between 2005 and 2010. (Docket # 29 at 9-10.) But both Johnson and
his counsel viewed the 2006 and 2010 videotaped interviews of M.J. prior to trial; thus, it is difficult
to believe that Johnson did not know what types of other acts the State was going to use.
Furthermore, the State offered that the “other acts” would be “other allegations of sexual assault
going back to 2006 through January of 2010.” (Docket # 33-1 at 10-11.)
Also, Johnson has not shown that the trial court’s evidentiary ruling was incorrect in the first
place. The court of appeals noted that the State moved to admit evidence that Johnson began
sexually assaulting M.J. in 2006 and continued to assault her through late January 2010. (Docket
# 1-1 at 5.) The State proffered that M.J. first made a documented complaint about Johnson in 2006
and on May 2, 2006, when she was interviewed by a police officer, she disclosed that Johnson
touched her vaginal area. (Id.) In 2010, M.J. gave a statement in which said that every time she is
asleep, Johnson is drunk and touches her everywhere in places he should not be touching her. (Id.)
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The State explained that it wanted to present evidence of Johnson’s prior acts of sexually assaulting
M.J. because they: (1) provided a context for the charge; (2) supported the State’s theory that
Johnson’s actions were part of a plan to perpetrate ongoing assaults on her; and (3) explained why
M.J. had difficulty in describing the precise memory of the specific event charged. (Id. at 5-6.)
The court of appeals stated, pursuant to Wis. Stat. § 904.04(2), that other crimes, wrongs, or
acts are admissible to support a contention that the crime charged is part of a larger plan. (Id. at 6.)
The court of appeals further stated that context, credibility, and background are also permissible
purposes for other acts evidence. (Id.) The court of appeals found that the trial court considered the
proper factors, applied the appropriate standard of law, and reached a conclusion that a reasonable
judge could reach and thus properly exercised its discretion. (Id.)
Johnson has not established that the trial court’s evidentiary ruling was incorrect or somehow
violated his due process right to a fundamentally fair trial. Thus, Johnson is not entitled to habeas
relief on this ground.
CERTIFICATE OF APPEALABILITY
According to Rule 11(a) of the Rules Governing § 2254 Cases, the court must issue or deny
a certificate of appealability “when it enters a final order adverse to the applicant.” A certificate of
appealability may issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing of the denial of a
constitutional right, the petitioner must demonstrate that “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) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, and n.4).
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When the case is resolved on procedural grounds, a certificate of appealability “should issue
when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.” Id. Section 2253 mandates
that both showings be made before a certificate of appealability is granted. Id. at 485. Each
component of the § 2253(c) showing is part of a threshold inquiry; thus, the court need only address
one component if that particular showing will resolve the issue. Id.
Jurists of reason would not find it debatable that my findings as to Johnson’s sufficiency of
the evidence, ineffective assistance of counsel, and state evidentiary ruling claims were correct. Thus,
I will deny Johnson a certificate of appealability. Of course, Johnson retains the right to seek a
certificate of appealability from the Court of Appeals pursuant to Rule 22(b) of the Federal Rules of
Appellate Procedure.
ORDER
NOW, THEREFORE, IT IS ORDERED that the petitioner’s petition for a writ of habeas
corpus (Docket # 1) is DENIED.
IT IS FURTHER ORDERED that this action be and hereby is DISMISSED.
IT IS ALSO ORDERED that a certificate of appealability shall not issue.
FINALLY, IT IS ORDERED that the Clerk of Court enter judgment accordingly.
Dated at Milwaukee, Wisconsin this 28th day of November, 2017.
BY THE COURT
s/Nancy Joseph
NANCY JOSEPH
United States Magistrate Judge

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