Bailey v. Foster
Filing
29
ORDER DISMISSING CASE signed by Judge Pamela Pepper on 9/28/2018. 25 Judge Duffin's Report and Recommendations ADOPTED. 1 Petitioner's Petition for Writ of Habeas Corpus DENIED. 27 Petitioner's Request for Certificate of Appealability DENIED. Case DISMISSED. (cc: all counsel, via mail to Keith Bailey at Green Bay Correctional Institution)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
KEITH BAILEY,
Petitioner,
v.
Case No. 15-cv-584-pp
BRIAN FOSTER,
Respondent.
ORDER ADOPTING JUDGE DUFFIN’S RECOMMENDATION (DKT. NO. 25),
DENYING PETITION FOR WRIT OF HABEAS CORPUS (DKT. NO. 1),
DENYING REQUEST FOR CERTIFICATE OF APPEALABILITY (DKT. NO. 27),
AND DISMISSING CASE
Petitioner Keith Bailey filed a petition for writ of habeas corpus under 28
U.S.C. §2254, challenging his 2012 conviction in Kenosha County on two
counts of first-degree sexual assault. Dkt. No. 7. The case was assigned to
Judge Charles N. Clevert, Jr. on July 9, 2015. Judge Clevert granted several
extensions of time, and the parties did not finish briefing the petition until
June 24, 2016. Following Judge Clevert’s retirement in March of 2017, the case
was reassigned o this court. This court referred the case to a magistrate judge
for the preparation of a report and recommendation. Dkt. No. 24.
On June 29, 2018, Judge William E. Duffin issued his report,
recommending that this court deny the petition because the petitioner had
failed to raise a claim on which he is entitled to relief. Dkt. No. 25. Judge
Duffin also recommended that the court decline to issue a certificate of
1
appealability, because the petitioner had failed to make a substantial showing
of the denial of a constitutional right. Id. at 12. The order advised the plaintiff
that he had fourteen days to file an objection. Id. at 12-13.
The petitioner filed a one-paragraph objection on July 19, 2018. Dkt. No.
26. He also filed a request for a certificate of appealability, dkt. no. 27, and a
brief in support of that request, dkt. no. 28. The court will adopt Judge Duffin’s
recommendation, deny the petition, deny the petitioner’s request for a
certificate of appealability and dismiss the case.
I.
Standard of Review.
Under Federal Rule of Civil Procedure 72(b), the district court must
decide “de novo”—starting from the beginning, without deferring to the
magistrate judge’s conclusions—any part of the magistrate judge’s ruling to
which the petitioner properly objects. Fed. R. Civ. P. 72(b). The petitioner has
objected to Judge Duffin’s findings on the issue of juror bias and “prosecutorial
conduct closing argument.” Dkt. No. 26. The court has conducted a de novo
review of those issues.
II.
BACKGROUND
A.
The Trial Court
In 2010, the state charged the petitioner and a co-defendant, Eddie
“Memphis” Walker, in separate complaints with first-degree sexual assault of
two women in February of 2009 and 2010. Dkt. No. 12-3 at 6. The cases were
consolidated, and the state was allowed to amend the information to include
two separate counts of first degree sexual assault, party to a crime. Id.
2
Trial began on November 7, 2011, with jury selection. Dkt. No. 12-10 at
21. During voir dire, none of the prospective jurors raised their hands when
asked whether they did not believe that the state and defendant were entitled to
a fair trial. Id. at 41. When asked if any of them had been sexually assaulted or
knew of someone who had been sexually assaulted, several jurors raised their
hands. Id. One juror, M.P., revealed that she knew someone who had been
assaulted, and asked to speak privately to the court and the lawyers in the
conference room. Id. at 43. M.P. privately revealed that her son-in-law had
sexually assaulted her grandson’s male friend. Id. at 44. She said she
understood that the petitioner had a different case with different people
involved. Id. M.P. thought she could decide the petitioner’s case on the
evidence presented and that her bad feelings were specific to her son-in-law,
not to the crime for which he was convicted. Id. at 45. When defense counsel
asked, “And you believe that you can sit and listen to testimony from different
sources and separate that from sounds like the visceral feeling that you have
for your son-in-law?”, she said “yeah, I think so. Yes.” Id. at 46.
Another juror, L.W., revealed that she had been sexually assaulted by an
Air Force colleague in 2001 at Sheppard Air Force Base in Wichita Falls, Texas,
after she took a sleeping pill. Id. at 46-47. The prosecutor asked whether she
had any injuries that someone could photograph, and she responded that she
bruises easily. Id. at 48. Later in voir dire, L.W. said she believed that officers
treated her unfairly in one of two drunk driving arrests. Id. at 66-67. Even so,
she did not think she would be biased against the police, because “different
3
officers, everybody’s different.” Id. at 67. When asked, “Is there anybody here
who, in order to render a verdict, has to be shown some kind of physical
evidence like DNA or photographs or videos, something outside of just
testimony from a witness,” this same juror said, “Yes. There’d have to be some
pretty good evidence or something” because “it’s a serious charge that’s going
to affect his life for the rest of it.” Id. at 90. No one—neither the parties nor the
court—asked this juror whether her experience as a sexual assault victim
might impact her ability to be fair and impartial. At least seven other potential
jurors knew people who had been sexually assaulted by friends or family
members. Id. at 42, 48-56.
At trial, the state called the two women who had filed the complaints
against the petitioner. Both had known the petitioner before the assaults, but
they did not know each other. Dkt. No. 12-11 at 63. The first woman, Janet,
testified that the petitioner and co-defendant Memphis forced her into her
apartment on February 16, 2009 and that both men participated in the rape.
Id. at 64-70. Janet reported the rape to the hospital, and then to officers at the
station. Id. at 72. She canceled her complaint at the time because she was
scared. Id. at 73. The second woman, Cassandra, also testified she knew the
petitioner before her assault. Dkt. No. 12-12 at 24. The petitioner and codefendant Memphis had offered to drive Cassandra home. Id. at 27. She
testified that on February 14, 2010, they took her to the basement, grabbed
her hair, forced her to the ground, removed her clothes and that both men
sexually assaulted her. Id. at 33-42. The state called multiple other witnesses
4
to testify, but did not offer DNA evidence linking the petitioner to either crime
(Memphis’s DNA was on Cassandra, id. at 131).
During closing arguments, the prosecutor focused on the similarities
between the assaults as told by two women (ages 17 and 31) who did not know
each other—in the same building, simultaneous assault with both men, the
petitioner started the assault, and the petitioner used a condom (Memphis did
not). Id. at 12-12 at 138-141. The prosecutor also focused on petitioner’s
credibility:
Here’s one thing we know for sure. This defendant lied in that
interview room. Why would he lie to two detectives investigating
sexual assault charges against him? Not just for the fun of it. He lied
because the truth was dangerous to him.
What did the defendant lie about? A man named Memphis, the
codefendant. He lied about how well he knew Memphis, how long
he’d known him, where the man lived. Why did the defendant say
Memphis was from Chicago? Because if Memphis was from Chicago
and the detectives didn’t know his real name, then they wouldn’t
find him and this defendant did not want the detectives to find
Memphis.
He wanted to throw them off Memphis’ trail. Why? Because if the
detectives talked to Memphis and Memphis might talk and that
would be dangerous for this defendant. Memphis might sell him out
or Memphis might give a story that did not jibe with this defendant’s
story and either one of those possibilities was dangerous for this
defendant. So this defendant lied about Memphis so that the
detectives would not find him because Memphis could be dangerous
to this defendant.
Dkt. No. 12-12 at 129-130.
The petitioner’s counsel responded that he had heard the state trying to
explain its case through conjecture and assumption, without a “whole lot of
evidence from the state.” Id. at 145.
5
. . . There’s ample evidence for you to conclude that [Bailey] knew
Memphis longer than he said he did. However, the fact that he knew
Memphis longer than he said he did, to assume he’s doing that
because he’s trying to protect himself, that’s conjecture.
Id. at 149.
Now, I know, because there’s some things that Mr. Bailey wasn’t
honest about . . . that he knew Memphis. Okay? But just because
he’s lying about his friend doesn’t mean it’s because he’s afraid his
friend is going to roll over on him. It just makes just as much sense
of not wanting to get your friend in trouble. You’re trying to protect
somebody close to you.
Id. at 156.
In rebuttal, the prosecutor said:
This defendant again and again and again is questioned about his
relationship with Memphis. And there’s no mistake there. It’s
crystal clear what’s being asked and it’s crystal clear from the
testimony, and his attorney admits he lied, he lied about that.
[Defense counsel] used the word “conjecture” quite a bit.
* * * *
When [defense counsel] says that it’s mere conjecture for me to say
that Memphis was lying to protect himself, I dispute that. That’s
not conjecture. That’s common sense. People lie for a reason. If he
was lying to protect Memphis, if he was innocent, why did these two
women say he assaulted them also? If he is essentially conceding
that Memphis committed a sexual assault but not this defendant,
which would be the reason to protect Memphis, then why does
Cassandra say that both men were involved? It come[s] back[] to
motives. It continues to come back to motives.
Id. at 159-160.
The jury returned a guilty verdict on two counts of first-degree sexual
assault, as a party to a crime. Dkt. No. 1 at 2. The court sentenced the
petitioner to forty years in state prison with extended supervision to follow, to
run consecutively to a sentence imposed in a different case. Dkt. No. 12-2 at 1.
6
In a post-conviction motion the petitioner argued that jurors M.P. and
L.W. should have been removed from the jury panel for bias. Dkt. No. 12-3 at
45-49. The circuit court denied the motion, finding that juror M.P. had “clearly
answered that she could be fair, answered yes several times over.” Dkt. No. 123 at 59. Regarding L.W., the court found that “her answers were clear in that
she indicates she understands the difference [between her own assault and the
facts of the petitioner’s case], she understands the severity of these charges,
she doesn’t indicate any type of bias in her questioning.” Id. The petitioner also
argued that in closing and rebuttal, the prosecutor argued that the petitioner
had “essentially conceded” that a sexual assault had occurred and that codefendant Memphis was involved. Id. at 60-61. The petitioner’s post-conviction
counsel argued that the petitioner never had conceded that a sexual assault
had occurred, or that Memphis had committed such an assault, and that for
the state to argue as much denied him his right to a fair trial. Id. at 62-63. The
court denied this part of the motion (after reviewing the transcript of the
closing arguments), stating that the judge “[did] not believe that any
interpretation of the arguments in closing could be construed to say that
[defense counsel] conceded that there was a sexual assault or that—nor did
[the prosecutor] leave the impression on the jury that there was a concession
that there was a sexual assault.” Id. at 73.
B.
The Appellate Court
On direct appeal, the petitioner argued that the court should vacate his
conviction because of jury bias and improper closing arguments. Id. at 5. The
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Wisconsin Court of Appeals affirmed on January 15, 2014. State v. Bailey, 843
N.W.2d 710 at *1 (Ct. App. 2014). In affirming, the Wisconsin Court of Appeals
first considered the petitioner’s arguments about objective and subjective bias.
Id. at *2. It noted that the circuit court had found that the first juror, M.P.,
could fairly consider the petitioner’s case, and concluded that that decision was
not clearly erroneous based on the record. Id. The juror knew the petitioner’s
case differed from the one in which she had personal knowledge, and she
thought she could be fair and that her bad feelings were limited to her son-inlaw. Id.
Similarly, the appellate court found the second juror, L.W., had not
“manifest[ed] any type of bias during voir dire.” Id. The second juror
understood the difference between her case and the petitioner’s case. Id. The
petitioner had argued that the court of appeals should presume that L.W. was
biased, because neither trial counsel nor the trial court asked her questions
about potential bias resulting from her own assault. Id. The appellate court
rejected this argument, finding that the law required the court to presume
impartiality, not bias. Id. (citing State v. Smith, 716 N.W.2d 482 (Wis. 2006)).
The petitioner also argued that the trial court had an independent duty to
inquire, once it became aware that L.W. had been the victim of an assault. Id.
The appellate court rejected this argument, as well, noting that L.W. had not
“identif[ied] herself as a person who would be unable to be an impartial juror
when the State posed the question to the entire venire,” and that when asked
by defense counsel about whether a juror would require physical evidence such
8
as DNA to reach a verdict, the second juror said “there’d have to be pretty good
evidence or something, I mean, that’s—it’s a serious charge that’s going to
affect his life for the rest of it.” Id. The court of appeals concluded that L.W.
clearly knew the case was important to the petitioner, and also noted that “a
sexual assault victim is not automatically precluded from serving as a juror in
sexual assault trial.” Id. (citing State v. Erickson, 596 N.W.2d 749 (1999)).
Turing to the petitioner’s arguments regarding the prosecutor’s remarks,
the court of appeals agreed with the circuit court that the remarks did not
suggest that the petitioner had conceded a sexual assault occurred or that
Memphis had participated in it. Id. at *4. Rather, the court found, the
prosecutor had argued that the petitioner had not been truthful during the
investigation about his relationship with Memphis. Id. These remarks did not
so infect “the trial with unfairness as to make the resulting conviction a denial
of due process.” Id. (quoting State v. Mayo, 734 N.W.2d 115 (Wis. 2007)).
Because the law allowed a lawyer to argue that the evidence supports many
inferences, the appellate court concluded that the prosecutor’s remarks were
not improper. Id. (citing State v. Draize, 276 N.W.2d 784 (1979)).
The Wisconsin Supreme Court denied the petitioner’s petition for review
on May 22, 2014. Dkt. No. 12-8. The petitioner did not file a petition for
certiorari in the United States Supreme Court. Dkt. No. 1.
C.
The Federal Magistrate Judge
The petitioner filed his federal habeas petition on May 14, 2015, raising
three grounds for relief. Dkt. No. 1 at 6. The first ground argued juror bias as
9
to M.P., id. at 6-7; the second argued juror bias as to L.W., id. at 7-8. The
petitioner’s third ground focused on the prosecutor’s “inflammatory” remarks
during closing, which the petitioner asserted denied him of his right to a fair
trial. Id. at 8.
After reviewing the decision of the Wisconsin Court of Appeals, Judge
Duffin examined the juror bias claims under the due process clause of the
Fourteenth Amendment. Dkt. No. 25 at 5. He found that the court of appeals’
conclusion that the first juror was not biased was reasonable, because her
experience differed from the charges pending against the petitioner and her
“bad feelings” were directed at her son-in-law. Id. at 7. She testified that she
could decide the case based solely on the evidence in court. Id.
As to the second juror, Judge Duffin rejected the petitioner’s argument
that the circuit court should have removed the juror sua sponte, noting that
the Supreme Court never has held that a defendant is denied a fair trial simply
by virtue of a juror having been the victim of a similar crime. Id. To the extent
that the petitioner argued that counsel was ineffective for failing to ask L.W.
questions about possible bias based on her assault, Judge Duffin pointed out
that the court of appeals had noted that the petitioner did not call counsel to
testify at the post-conviction hearing (even though he couldn’t prove an
ineffective assistance claim without it), and found that he had waived the
opportunity to present the testimony of counsel to the court. Id. at 8-9. That
caused Judge Duffin to consider whether the petitioner had procedurally
defaulted on his ineffective assistance of counsel claim. Id. at 9. To overcome
10
procedural default, Judge Duffin explained, the record had to show that the
trial lawyer’s performance “was both unreasonable and prejudicial.” Id. Judge
Duffin concluded that the record did not support such a finding. Id. at 9-10. In
fact, he speculated, defense counsel may have had reason to want L.W. on the
jury, because she expressed skepticism about convicting someone based solely
on witness testimony. Id. at 9. For these reasons, Judge Duffin concluded that
the petitioner could not prevail on his juror bias claims. Id. at 10.
As for the prosecutorial misconduct claims, Judge Duffin discussed the
Supreme Court standard articulated in Darden v. Wainwright, 477 U.S. 168
(1986). Id. at 13. Under this standard, the court determines whether the
comments were improper and, if so, whether the defendant was prejudiced by
the comments. Ellison v. Acevedo, 593 F.3d 625, 635-36 (7th Cir. 2010).
Judge Duffin agreed with the state court of appeals that the prosecutor’s
statement was not improper. Dkt. No. 25 at 12. He found that one could
reasonably infer from the fact that the petitioner lied about Memphis to protect
Memphis that the petitioner knew Memphis committed the rapes. Id. From that
inference, one could properly infer that the petitioner was involved in the rapes,
because the victims testified that the two men had committed the rapes
together. Id. Thus, Judge Duffin concluded, the prosecutor’s statements to that
effect were not improper. Id.
III.
ANALYSIS
A federal court may not grant habeas relief unless the state court's
decision “was contrary to, or involved an unreasonable application of, clearly
11
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.” 28 U.S.C. § 2254(d). In
other words, the federal court decides whether the state court used the wrong
legal standard, or applied the correct standard unreasonably. Ward v. Neal,
835 F.3d 698, 703 (7th Cir. 2016). “An unreasonable application of federal law
is different from an incorrect application of federal law.” Id. (quoting Harrington
v. Richter, 562 U.S. 86, 101 (2011)). The state prisoner “must show that the
state court’s ruling on the claim being presented in federal court was so lacking
in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Richter, 562
U.S. at 103.
A.
Juror Bias
The Wisconsin Court of Appeals applied the correct legal standard to the
petitioner’s juror bias claim, and did so in a reasonable manner. As Judge
Duffin explained, due process rights guarantee a defendant a jury “capable and
willing to decide the case solely on the evidence before it,” and a trial judge
“ever watchful to prevent prejudicial occurrences and to determine the effect of
such occurrences when they happen.” Smith v. Phillips, 455 U.S. 209, 217
(1982). If a trial judge becomes aware of a possible source of bias, the court
must “determine the circumstances, the impact thereof upon the juror, and
whether or not it was prejudicial.” Oswald v. Bertrand, 374 F.3d 475, 478 (7th
Cir. 2004) (quoting Remmer v. United States, 347 U.S. 227, 230 (1954)). On the
12
other hand, the Supreme Court has approved a “presumption of prejudice . . .
only [in] the extreme case.” Skilling v. United States, 561 U.S. 358, 381 (2010)
(finding no presumption of prejudice where defendant had significant pretrial
press exposure in the community in which his trial took place).
The Seventh Circuit has explained the “critical difference” between a
juror's personal beliefs and a bias that requires disqualification:
Everyone brings to a case a set of beliefs that may incline him in one
direction or another. A person told that X had been indicted, and
asked whether he thought X guilty, might reply that he thought X
probably was guilty because few innocent people are indicted. That
would be a prior [belief]. It would be a bias only if it were irrational
or unshakable, so that the prospective juror “would be unable to
faithfully and impartially apply the law,” Wainwright v. Witt, 469
U.S. 412, 424, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985) (emphasis
added), would be, in other words, “adamant,” Fleenor v. Anderson,
171 F.3d 1096, 1099 (7th Cir. 1999)—in our hypothetical if, for
example, the person added, “Nothing will ever convince me that the
government would indict an innocent person.”
Griffin v. Bell, 694 F.3d 817, 824 (7th Cir. 2012) (quoting Thompson v.
Altheimer & Gray, 248 F.3d 621, 625 (7th Cir. 2001)). The court also has
held that “juror impartiality . . . does not require ignorance.” Skilling, 561
U.S. at 381 (citing cases) (emphasis in the original).
The court of appeals combed the record, and found no evidence of
objective or subjective bias (or what the Seventh Circuit calls an
“irrational or unshakable bias”). Juror M.P. acknowledged that the
petitioner’s case was different from her own experience, and stated more
than once that she believed she could decide the case based solely on the
evidence. Bailey, 843 N.W.2d 710, at *2. As to L.W., the court found that
the sole fact that she had been the victim of a sexual assault years
13
earlier did not mandate her removal from the jury. Id. The court of
appeals cited the circuit court’s finding that L.W. understood the
difference between her case and the petitioner’s, and that she did not
“manifest any type of bias during voir dire.” Id. The court of appeals also
distinguished the petitioner’s case from Oswald, where the jurors had
discussed the case among themselves during the four-day selection
process. Id. Although the Seventh Circuit found in Oswald that a judge’s
inquiry was inadequate where there was a “high probability that some,
maybe all, of the jurors . . . were biased,” Oswald, 374 F.3d at 480, the
court of appeals was right that there was no such “high probability” in
this case.
The court of appeals also considered the implications of the
petitioner’s claim that counsel should have followed up by asking L.W.
more questions. The petitioner did not develop the postconviction record
on why counsel did not challenge L.W. or question her further based on
her personal experience. Trial counsel was present at the postconviction
motion hearing, but postconviction counsel did not object or ask the
circuit court to preserve trial counsel’s testimony. Bailey, 843 N.W.2d
710 at *2. As Judge Duffin explained, the Supreme Court’s decision in
Strickland v. Washington, 466 U.S. 668, 687 (1984) requires a showing
of deficient performance and prejudice. Dkt. No. 25 at 8. The court of
appeals appears to have considered these prongs in finding that the
postconviction record was undeveloped on the question of why trial
14
counsel did not challenge L.W. or question her further based on her
personal history. Bailey, 843 N.W.2d 710 at *2. Without evidence that
L.W. harbored a bias against the petitioner, or that more questions would
have uncovered evidence of a bias, the court of appeals’ decision was not
unreasonable.
The court of appeals applied the correct standard, and its
conclusion was not contrary to the established law.
B.
Prosecutorial Misconduct/Fair Trial
The clearly-established federal law relevant to the petitioner’s second
argument—prosecutorial misconduct during the closing argument—is in
Darden v. Wainwright, 477 U.S. 168, 181 (1986). In Darden, the Supreme
Court explained that a prosecutor’s improper comments violate the
Constitution only if they ‘so infected the trial with unfairness as to make the
resulting conviction a denial of due process.’” Parker v. Matthews, 132 S. Ct.
2148, 2153 (2012) (citing Darden, 477 U.S. at 181). Darden established a twopart framework to evaluate “whether the prosecutors' comments ‘so infected
the trial with unfairness as to make the resulting conviction a denial of due
process.’” Id. First, the court evaluates whether the prosecutor’s comments
were improper. Id. Second, if the comments were improper, the court asks
whether the improper comments prejudiced the defendant—whether the
improper comments rendered the trial “fundamentally unfair.” Id. at 181-83.
The court of appeals found that the prosecutor’s remarks regarding the
petitioner lying to protect Memphis did “not so infect ‘the trial with unfairness
15
as to make the resulting conviction a denial of due process.’” Bailey, 843
N.W.2d 710 at *4. Agreeing with the circuit court, the court of appeals
construed the prosecutor’s argument as a statement that the petitioner had not
been truthful about his relationship with Memphis. Id. It concluded that it was
reasonable for the prosecutor to infer from the petitioner’s having lied about
Memphis that he was trying to distance himself from Memphis because
Memphis had information that could hurt the petitioner. Id.
Judge Duffin agreed; this court does, as well. Counsel has “more leeway
in closing arguments to suggest inferences based on the evidence, highlight
weaknesses in the opponent’s case, and emphasize the strengths of their own
case.” Soltys v. Costello, 520 F.3d 737, 745 (7th Cir. 2008). That is what the
prosecutor did here—he suggested a string of inferences.
The prosecutor pointed out in his closing statement that the petitioner
had lied about how long the petitioner had known Memphis, and about where
Memphis was from. He argued that there had to be a reason that the petitioner
had lied about his relationship with Memphis, and inferred that the reason
he’d lied was because the petitioner did not want law enforcement to find
Memphis. Why would the petitioner not want law enforcement to find
Memphis? Because, the prosecutor inferred, Memphis might know things, and
tell law enforcement things, that would get the petitioner in trouble. In his
closing statements, the defendant’s lawyer disputed these inferences. The
prosecutor then said in rebuttal, “If [the petitioner] is essentially conceding that
Memphis committed a sexual assault but not this defendant, which would be
16
the reason to protect Memphis, then why does Cassandra say that both men
were involved?” Dkt. No. 12-12 at 160.
This statement was not improper. The prosecutor couched the statement
as a hypothetical. The hypothetical asked the jury to assume that the
petitioner’s lies “essentially” amounted to a concession that Memphis had
committed “a sexual assault,” but that the petitioner had not. Against that
hypothetical, the prosecutor asked the jury to consider why the second victim
identified both Memphis and the petitioner as her assailants. Prosecutors (and
defense attorneys) can draw such inferences in their arguments, and the
prosecutor had a good faith basis for drawing these inferences.
Another thing—the trial court gave the jury a detailed set of instructions
before the jury went back into the jury room to deliberate. It specifically told
the jurors, “Consider carefully the closing arguments of the attorneys, but their
arguments and conclusions and opinions are not evidence. Draw your own
conclusions from the evidence and decide upon your verdict according to the
evidence under the instructions given you by the Court.” Dkt. No. 12-12 at
123. The prosecutor’s statements were not improper, and they did not “infect”
the petitioner’s trial with unfairness. Even if there had been some whiff of
impropriety about the statements, however, the court made clear to the jurors
that the remarks of the lawyers were not evidence.
Finally, this court finds it significant that both victims testified at the
petitioner’s trial, and both testified that they knew him before the assaults.
Both identified him as one of the men who assaulted them. This is not a case
17
in which the victims identified a stranger from photographs or a lineup. These
victims testified that someone they knew had assaulted them. Multiple other
witnesses testified. The prosecutor’s remarks occurred in that context. He was
not asking the jurors to convict the petitioner solely because the petitioner had
lied about his relationship with Memphis. The prosecutor was arguing that
those lies contradicted the direct testimony of the victims, and asked the jury
to draw reasonable inferences about the reasons for such contradictions.
In sum, the court of appeals applied the correct standard, and its
decision was not contrary to established law; the decision was reasonable.
C.
Conclusion
The petitioner raised these issues before the trial court, which considered
them thoroughly and in detail. He raised them before the court of appeals,
which did the same. He raised them before Judge Duffin, who did the same.
Three courts have concluded that the petitioner’s claims of juror bias and
prosecutorial misconduct have no merit. This court agrees with Judge Duffin
that the court of appeals applied the correct standards, and that its decision
was not contrary to established law. This court accepts Judge Duffin’s
recommendation and denies the petition.
IV.
CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing Section 2254 Cases in the United
States District Courts says that whenever a district court enters a final order
that is adverse to the petitioner, it must either issue or deny a certificate of
appealability. A district judge may issue a certificate of appealability only when
18
a petitioner has made “a substantial showing of the denial of a constitutional
right,” 28 U.S.C. § 2253(c)(2), and when “jurists of reason could . . . disagree”
as to whether the court wrongly decided the issue, Walton v. Schwochert, Case
No. 10-cv-117, 2010 WL 4318887 at *2 (E.D. Wis. Oct. 25, 2010). Because
reasonable jurists would not disagree with the court’s conclusions, the court
declines to issue a certificate of appealability.
IV.
CONCLUSION
The court ADOPTS Judge Duffin’s recommendation. Dkt. No. 25.
The court DENIES the petitioner’s petition for writ of habeas corpus. Dkt.
No. 1.
The court DENIES the petitioner’s request for a certificate of
appealability. Dkt. No. 27.
The court ORDERS that this case is DISMISSED.
This order and the judgment to follow are final. A dissatisfied party may
appeal this court’s decision to the Court of Appeals for the Seventh Circuit by
filing in this court a notice of appeal within thirty (30) days of the entry of
judgment. See Fed. R. of App P. 3, 4. This court may extend this deadline if a
party timely requests an extension and shows good cause or excusable neglect
for not being able to meet the thirty-day deadline. See Fed. R. App. P. 4(a)(5)(A).
Under certain circumstances, a party may ask this court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief
from judgment under Federal Rule of Civil Procedure 60(b). Any motion under
Rule 59(e) must be filed within twenty-eight (28) days of the entry of judgment.
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The court cannot extend this deadline. See Fed. R. Civ. P. 6(b)(2). Any motion
under Rule 60(b) must be filed within a reasonable time, generally no more
than one year after the entry of judgment. The court cannot extend this
deadline. See Fed. R. Civ. P. 6(b)(2).
The court expects the parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 28th day of September, 2018.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge
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