Smith v. Pollard
Filing
21
DECISION AND ORDER signed by Magistrate Judge Nancy Joseph. THEREFORE, IT IS ORDERED that the petitioner's petition for a writ of habeas corpus (Docket # 1) be and hereby 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. (cc: all counsel, petitioner)(asc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
OMAR J. SMITH,
Petitioner,
v.
Case No. 15-CV-603
WILLIAM J. POLLARD,
Respondent.
DECISION AND ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS
Omar J. Smith, a prisoner in Wisconsin custody, seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Smith was convicted of one count of first degree reckless
homicide, as party to a crime; two counts of recklessly endangering safety, as party to a
crime; one count of felon in possession of a firearm; and one count of felony bail jumping.
(Habeas Petition at 2, Docket # 1.) Smith was sentenced to sixty-two years of initial
confinement followed by thirty-eight years of extended supervision. (Id.) Smith alleges that
his conviction and sentence are unconstitutional. For the reasons stated below, the petition
for writ of habeas corpus will be denied and the case dismissed.
BACKGROUND
Smith’s conviction and sentence stem from an incident that occurred on April 17,
2009. (Answer, Exh. 5, State v. Smith, 2012AP863 (Wis. Ct. App. Sept. 10, 2013), Docket #
12-5.) At approximately 8:30 p.m. that night, several friends gathered outside a home at
2465 West McKinley in Milwaukee. (Id. at 2.) The friends saw three men in black hoodies
across the street start shooting at them. (Id.) Bullets from the guns hit three women in the
group and one of the women died from the nine-millimeter bullet that hit her heart. (Id.)
A few days later, police detectives questioned Smith about the shooting. (Id.) The
police stopped the interview when Smith asked for a lawyer and the officers packed up and
left the room. (Id.) When a detective came back to give Smith the cigarette he requested,
Smith reinitiated the interview saying, “he wanted to tell [the detectives] what happened but
he didn’t want to tell or rat on anyone else involved.” (Id.) Smith responded: “I’ll tell you
what I did without a lawyer present.” (Id.) The detectives re-read Smith his Miranda v.
Arizona, 384 U.S. 436 (1966) warnings, and Smith said he understood his rights. (Id.) The
recorded transcript of the interview reads in pertinent part:
Detective:
Okay. Like I said, you can say what you want. If you don't
want to, say, about this is what other people did―that’s up to
you. You know what I mean? I'm not gonna―
Smith:
But that don’t make it look worse on me than I don’t say
nothing about somebody else?
Detective:
I would rather have you cooper- but you know what? It
depends on the situation. You know what? Some people could
say they could understand. You know what I mean? If, you
know, there might be a certain type of individuals that you're
very close with not wanting to say what, you know, so― you
know what? It depends on the situation. But what my thing
is―it’s― it― it’s up to you. It’s up to you.
Smith:
You know cuz I really want―I wanna talk to you all man but―
Detective:
Well, like I said―you can―
Smith:
Know what I’m sayin’?
2
Detective:
You can, listen, you can- you can tell us what you wanna tell us
and what you don’t wanna tell us, you don't have to right now.
You know what I mean? And if you don't want to, that’s up to
you. If you don’t wanna tell us who else, you know, what other
peoples’ parts were, that’s your decision. You know what I
mean? Do you wanna tell us what your part in this was, Omar?
Smith:
I want to, but I kind a wanna lawyer present, but I don’t want it
to look like if I wait for my lawyer.
Detective:
It’s your decision.
Smith:
I don’t want it to look worse for me if I wait for my lawyer.
Detective:
Omar. Omar. This is your decision. We can’t help you with
that. Okay? I can’t tell ya to do one or the other. It’s your
decision. Like I said, remember in the rights, it said you can
answer some questions and you can pick and―it’s also you can
pick and choose what questions you want. So it’s your decision
whether you want- not answer any or answer some, or it’s your
decision.
Smith:
Hmm. Fire away with your own questions―I don’t―
Detective:
Sure you want (inaudible) you wanna―you wanna―tell us what
happened?
Smith:
Umm, fire away with your questions.
Detective:
Does that mean yes?
Smith:
Go right ahead.
Detective:
What’s that?
Smith:
Go right ahead.
(Answer, Exh. 21, Docket # 12-21.) Smith then proceeded to make incriminating
statements. (Docket # 12-5 at 4-5.) Smith argued that his confession should be suppressed
because he invoked his right to a lawyer at the start of the second interview when he said: “I
3
kinda wanna lawyer present, but I don’t want it to look like if I wait for my lawyer.” (Id. at
5.) The trial judge denied the suppression motion, finding the statement “ambiguous and
equivocal.” (Id.) The trial judge further found that when the detectives clarified whether
Smith wanted to talk, Smith stated: “Yes, go right ahead.” (Id.)
Smith’s trial began on November 1, 2010. When the detective testified, the State
played the audio recording of Smith’s interview with police and the prosecutor gave each
juror a written transcript of the recorded interview to help them follow along. (Id. at 12.)
On the morning of November 3, 2010, the State called Smith’s co-actor, Alfonzo
Treadwell, to testify. (Id. at 5.) Treadwell testified that he pled guilty to a charge of homicide
for the shooting that occurred on April 17, 2009 and was sentenced to prison. (Id.) When
asked if he and Smith were involved in the shooting on April 17, 2009, Treadwell
responded: “Man, I keep telling you all, man . . . . I keep telling you all, man, people keep
trying to make me, you know what I’m saying, do something I don’t want to do. This the
second time they brought me down here and I told them . . . . If you all get him, you get him
on your own.” (Formatting altered.) When pressed to answer, “Yes or no?”, he answered
“No.” When asked to tell the jury what happened on April 17, 2009, Treadwell just kept
saying “I told you all. I told you all already, man.” (Id. at 6.)
The trial judge sent the jury out the courtroom and the trial judge told Treadwell that
it could find him in contempt, “in effect add time on to your sentence. Now if I bring the
jury out here, are you going to answer the questions?” Treadwell replied: “Nope.” (Id.) The
trial judge passed Treadwell as a witness until after lunch. (Id.) The trial judge told the
4
prosecutor: “One of the things that you could certainly do is you can ask me to declare him
unavailable because of his refusal to testify and then you can have his statement admitted
into evidence under 908.045(4), a statement against interest,” and suggested the prosecutor
“use the noon hour to find out if he’s [Treadwell] going to cooperate.” Smith’s lawyer then
said: “Your Honor, just so the Court -- I’m sure the Court is aware of this, but we would
strongly object to [declaring Treadwell unavailable]. My client does have a right to face his
accusers.” (Id.)
After lunch, the State recalled Treadwell. Treadwell “sat in the witness stand mute,
not saying a word.” (Id. at 7.) The prosecutor attempted to put Treadwell’s prior statements
to police into evidence by asking, in pertinent part, the following questions:
●
“Did you tell Detective Billy Ball on tape that a few days prior to
this homicide of Jordan Alvarez that you were at Omar Smith’s
house, that he was your friend and the house that Omar Smith
was at, at 1629 North 14th Street, was shot up?”
●
“Do you recall telling Detective Billy Ball that a few days prior to
this homicide that Omar Smith’s house was shot up and that
Omar had been very upset and his family was also upset over the
shooting?”
●
“Do you recall telling Detective Billy Ball that on the day of the
homicide that you were at Omar Smith’s house at 1629 North
14th Street; and that at one point while you were over there,
Omar Smith walked up to him and said, quote, come on with the
heat, unquote?”
●
“Do you recall telling Billy Ball that at this point that you got
into a white two-door car that belonged to Omar’s friend named
Juggy, that you got in the backseat behind the passenger and
Omar was in the backseat behind the driver? It further stated that
5
there was a black male that was dark complected in the front seat
of the two-door car and that he was a friend of Juggy.”
●
“Do you recall telling Detective Billy Ball that while you were
driving and riding in that car that you sat in the backseat and
loaded eight bullets into your .45 caliber pistol, which you have - - you
then cocked so it would be ready to fire when they got out?”
●
“Do you recall stating to Billy Ball that Juggy drove them to the
area of 23rd and McKinley? When Juggy stopped the car, he
overheard Omar telling Juggy to wait for them.”
●
“Do you recall that upon the car being stopped that you
immediately got out and ran towards the house on 24th Street
where all the people were out at? Do you recall stating that you
saw a guy named Ricky standing out and that you fired two or
three shots at Ricky?”
●
“Do you recall stating that you fired four or five shots at a black
car . . . and that the gun that you were using was a black .45
caliber pistol, which was yours?”
●
“Do you recall stating that after you had fired all of your bullets,
you began to hear more gunshots and did not know if it was
coming from Omar and the other black male or whether people
were shooting back at them, so you began to run from the
scene?”
●
“Do you recall telling Billy Ball that when this incident occurred
that you were wearing a pair of blue jeans, white dukies and a
black hoody?”
●
“Do you recall telling Billy Ball upon looking at a photo of a
Harold Conner, this person, Harold Conner, in the photo that
you looked at was the person that you know as Juggy and that
Juggy was the driver of the two-door white automobile?”
●
“Do you recall also during this statement that you identified
photographs shown to you of Omar Smith, who is the defendant
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in court here today, and you stated that that is Omar the person
who asked you to come with him to do the shooting?”
●
“Do you recall at that time telling the detectives . . . that Omar
wanted to go over to the area of 24th and McKinley to retaliate
because Omar Smith believed that the, quote, Deuce Squad,
unquote, shot at his mother’s house?”
●
“Do you recall telling the Police Detectives … that [the third
shooter] shot two to three times with the .22 and that his gun
jammed and that you shot approximately four to five times and
that Omar shot everything and then his gun locked back?”
(Id. at 7-9.) Treadwell refused to respond to these or any other questions during the
State’s direct examination. (Id.at 9.) Treadwell did not respond to most of the questions
that Smith’s lawyer asked on cross-examination. (Id.) Smith did not object during
Treadwell’s afternoon non-responsiveness. (Id.)
The following afternoon, Smith’s lawyer asked the trial judge for a mistrial
because Treadwell’s refusal to answer questions denied Smith his right to
confrontation. His lawyer told the trial judge that he did not object the day before
because: “there were certain things that [he] wanted to get out from Mr. Treadwell.
Especially if he was going to be declared unavailable” but “he just stopped talking.
He did almost all of this in front of the jury.” (Id.)
The State opposed the request for a mistrial in favor of striking all of
Treadwell’s testimony—both the morning testimony where he did answer questions,
and the afternoon testimony, where he stayed silent. (Id. at 9-10.) Smith’s lawyer
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asked the trial court to keep Treadwell’s morning testimony, but strike all the
questions asked in the afternoon. (Id. at 10.) The trial judge denied the motion for a
mistrial, opting to strike the questions asked in the afternoon. (Id. at 10-11.) Both
counsel agreed on the following curative jury instruction:
The Court has ordered struck all testimony of Alfonzo Treadwell from
the afternoon of Wednesday, November [3rd]. The jury is ordered to
disregard what occurred during the afternoon of November [3rd]
regarding the testimony of Treadwell. In particular, all questions and
comments by the attorneys and the Court and any responses given by
Treadwell because there is no evidence on this record that any of those
questions, comments, and responses were based in fact. His testimony
from the morning of November [3rd] is not affected by this order and it
is in evidence.
Remarks of the attorneys are not evidence. If the remarks suggested
certain facts not in evidence, disregard that suggestion.
(Id. at 11.) The trial court read a slightly different instruction to the jurors at the end
of the case:
The Court has struck all of the testimony of Alfonzo Treadwell from the
afternoon of Wednesday, November 3rd. The jury is ordered to
disregard and not consider in any manner whatsoever during your
deliberations what occurred during the afternoon of November 3rd
regarding the testimony of Treadwell, in particular all questions and
comments by the attorneys and the Court and any response given by
Treadwell, because there is no evidence on this record that any of those
questions, comments and responses were based in fact. His testimony
from the morning of November 3rd is not affected by this order, and it
is in evidence. Remarks of the attorneys are not evidence. If the remarks
suggested certain facts not in evidence, disregard the suggestion.
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(Id.) The jury found Smith guilty. (Id. at 12.) Smith appealed his judgment of conviction,
and the court of appeals affirmed his conviction on September 10, 2013. (Docket # 12-5.)
The Wisconsin Supreme Court denied review on February 19, 2014. (Answer, Exh. 8,
Docket # 12-8.) Smith’s federal habeas corpus petition was filed on May 18, 2015. (Docket
# 1.)
STANDARD OF REVIEW
Smith’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.
9
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 ‘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
Smith raises three grounds for relief in his habeas petition. In ground one, Smith
alleges that his Fifth Amendment right against self-incrimination was violated when his
statement to the detectives was admitted at trial. In ground two, Smith alleges that his Sixth
Amendment right to confrontation was violated when the trial judge allowed the State to
10
read in Treadwell’s statement in the form of questions. Finally, in ground three, Smith
alleges that his trial counsel was ineffective for failing to timely object to a violation of
Smith’s right to confrontation. I will address each in turn.
1.
Fifth Amendment Claim
Smith argues that his statement to law enforcement was admitted at trial in violation
of his rights under the Fifth Amendment. Smith argues that the detectives violated Smith’s
rights under Miranda by continuing to question him after he unambiguously invoked his
right to counsel. (Petitioner’s Br. at 17, Docket # 14.) Smith argues that the court of appeals’
decision was based on an unreasonable determination of the facts and contrary to clearly
established federal law.
Smith argues that the court of appeals’ factual determination that his statement did
not unambiguously invoke his right to a lawyer was an unreasonable determination of the
facts. Smith argues that the court of appeals improperly “cherry picked” the middle of his
statement where he said that “I kinda wanna lawyer present,” ignoring both the beginning
and the end of his statement. (Petitioner’s Am. Reply Br. at 3-4, Docket # 20.) Smith states:
“When asked by the detective if he would speak to them[,] Smith’s actual response was ‘I
want to, but I kinda wanna lawyer present, but I don’t want it to look like I wait for my
lawyer.’” (Petitioner’s Br. at 18.) (emphasis added by petitioner). Smith notes that the trial
judge explained, though the transcript does not show, that the detective began talking over
Smith, cutting him off by stating “It’s your decision.” (Id.) Smith argues that “[d]espite
being cut off by the detective[,] Smith finished what he was trying to say telling the
11
detective, ‘I don’t want it to look worse if I wait for my lawyer.’” (Id.) Smith further argues
that the court of appeals’ finding that the detective clarified whether Smith wanted to
continue with the interview or stop was unreasonable as “the detectives never attempted to
clarify Smith’s intentions.” (Petitioner’s Am. Reply Br. at 6.)
As an initial matter, Smith challenges the respondent’s statement that in federal
habeas corpus proceedings, state court fact-finding is presumptively correct and Smith bears
the burden of rebutting the presumption of correctness by clear and convincing evidence,
citing 28 U.S.C. § 2254(e)(1). Rather, Smith argues that pursuant to § 2254(d)(2), he need
not prove that the state court’s decision was based on an unreasonable determination of the
facts by clear and convincing evidence. (Petitioner’s Am. Reply Br. at 5.)
The Seventh Circuit has stated that under § 2254(d)(2), a decision involves an
unreasonable determination of the facts if it rests upon factual findings that ignore the clear
and convincing weight of the evidence. Goudy v. Basinger, 604 F.3d 394, 399 (7th Cir. 2010).
In 2010, the United States Supreme Court granted certiorari in Wood v. Allen, 558 U.S. 290
(2010) to address the relationship between §§ 2254(d)(2) and (e)(1). Courts of appeals were
divided on the question of whether, to satisfy § 2254(d)(2), a petitioner must establish only
that the state court factual determination on which the decision was based was
“unreasonable,” or whether § 2254(e)(1) additionally requires a petitioner to rebut a
presumption that the determination was correct with clear and convincing evidence. Id. at
299. The Wood Court ultimately concluded that it was unnecessary to clarify this question to
resolve the case before it. Id. at 293.
12
As in Wood, it is unnecessary to resolve this conflict. Even under the less deferential
standard set out in § 2254(d)(2), see id. at 301 (noting that § 2254(e)(1) set out an “arguably
more deferential standard” than § 2254(d)(2)), the court of appeals’ factual determinations
were not unreasonable. While Smith argues the court of appeals improperly “cherry picked”
the middle of his statement, the court of appeals in fact cited to the portions of his statement
that he argues the court failed to consider, namely the “I want to, but” language preceding
“I kinda wanna lawyer present” and Smith’s statement that “I don’t want it to look worse
for me if I wait for my lawyer.” (Docket # 12-5 at 3.) Further, Smith argues that the state
court’s determination that he “hedged . . . undoubtedly hinges on him having used the word
‘but,’” which was unreasonable. (Petitioner’s Br. at 18.) Smith argues that his use of the
word “but” was not hedging and he “clearly let the detectives know that he wanted to talk,
only he wanted a lawyer present without it being held against him as a condition of him
waiting for his lawyer.” (Id.)
However, the words the court of appeals focused on as “hedging” was not the “but,”
as Smith argues. The “hedging” language the court focused on was “I kinda wanna lawyer
present.” There is a difference between stating that one wants a lawyer present and one
“kind of” wants a lawyer present. It was not unreasonable for the court of appeals to
determine that Smith’s statement that he “kind of wanted” a lawyer present was ambiguous.
Further, the court of appeals’ finding that the detectives clarified Smith’s intentions was not
unreasonable. As cited above, the detective asked three follow-up questions to confirm
Smith’s intent to speak with them. (Docket # 12-21 at 4) (“Sure you want . . . tell us what
13
happened? Does that mean yes? What’s that?”). For these reasons, Smith has not shown
that the court of appeals’ decision was based on an unreasonable determination of the facts.
Smith also argues that the court of appeals’ decision was contrary to clearly
established federal law pursuant to § 2254(d)(1). (Petitioner’s Br. at 21.) The Supreme Court
has stated that invocation of the Miranda right to counsel is an objective inquiry that
“‘requires, at a minimum, some statement that can reasonably be construed to be an
expression of a desire for the assistance of an attorney.’” Davis v. United States, 512 U.S. 452,
459 (1994) (quoting McNeil v. Wisconsin, 501 U.S. 171, 178 (1991)). However, “if a suspect
makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer
in light of the circumstances would have understood only that the suspect might be invoking
the right to counsel, our precedents do not require the cessation of questioning.” Id.
(emphasis in original).
In Davis, the Supreme Court found that the statement “Maybe I should talk to a
lawyer” was ambiguous. Id. at 462. In finding Smith’s statement “I kinda wanna lawyer
present, but I don’t want it to look like if I wait for my lawyer” ambiguous, the court of
appeals cited and relied on Davis’ finding in its decision. (Docket # 12-5 at 13.) Smith does
not argue there is any significant difference between “maybe” and “kinda,” both words
invoking uncertainty.
Smith further argues that the court of appeals’ decision runs contrary to Smith v.
Illinois, 469 U.S. 91 (1984). In Smith, after being told he had a right to consult with a lawyer
and have a lawyer present during questioning, the suspect responded with “Uh, yeah. I’d
14
like to do that.” 469 U.S. at 93. Rather than ceasing questioning, however, the interrogating
officers continued to read the suspect his rights and then pressed him again to answer their
questions. Id. The suspect then agreed to talk to the officers. Id. It was undisputed that the
suspect’s initial request for counsel—“Uh, yeah. I’d like to do that”—was an unambiguous
request for an attorney. The courts were only able to construe the suspect’s request for
counsel as “ambiguous” by looking to his subsequent responses to continued police
questioning. Id. at 97. The Supreme Court found this improper, holding that an accused’s
post request responses to further interrogation may not be used to cast retrospective doubt
on the clarity of the initial request itself. Id. at 100.
Smith is inapposite. In Smith, the suspect unambiguously requested an attorney and
rather than stopping the questioning, the officers continued to read him his rights and press
him to answer questions. It was only then that the suspect agreed to talk to officers.
Contrary to Smith, in this case, when Smith initially requested counsel, the interrogation
stopped and the officers left the room. When an officer returned to give Smith a cigarette
that Smith had asked for, Smith reinitiated the interview and made the ambiguous request
of “I kinda wanna lawyer present.” See Edwards v. Arizona, 451 U.S. 477, 484–85 (1981)
(“We further hold that an accused, such as Edwards, having expressed his desire to deal
with the police only through counsel, is not subject to further interrogation by the
authorities until counsel has been made available to him, unless the accused himself initiates
further communication, exchanges, or conversations with the police.”).
15
Thus, unlike in Smith, in this case, Smith’s agreement to speak after he reinitiated the
interview is not being used to cast doubt on his initial request for an attorney. Rather,
because the officers undisputedly stopped the initial interview when Smith requested
counsel, the court of appeals focused on the period after Smith reinitiated the interview. For
these reasons, Smith has not shown the court of appeals’ decision was contrary to, or
involved an unreasonable application of, clearly established Federal law. Thus, he is not
entitled to habeas relief as to ground one of his petition.
2.
Sixth Amendment Claim
Smith also argues that his Sixth Amendment right to confront witnesses against him
was violated when the prosecutor put Treadwell’s statement into evidence under the guise of
posing questions that Treadwell refused to answer. (Petitioner’s Br. at 22.)
As an initial matter, Smith argues that the state court failed to reach the merits of his
Sixth Amendment claim and thus AEDPA’s deferential constrains do not apply and his
claim should be reviewed de novo. (Petitioner’s Br. at 23.) AEDPA’s deferential standard of
review applies only to claims that were actually “adjudicated on the merits in State court
proceedings.” Harris v. Thompson, 698 F.3d 609, 623 (7th Cir. 2012) (quoting 28 U.S.C. §
2254(d)). Where the state courts did not reach a federal constitutional issue, the claim is
reviewed de novo. Id.
The court of appeals noted that Smith argued that the questions the prosecutor asked
Treadwell the afternoon of November 3 prejudiced him and violated his right to
16
confrontation. Smith also argued that his lawyer acted ineffectively by not objecting until
the day after Treadwell testified. (Docket # 12-5 at 14.) Smith argued Bruton v. United States,
391 U.S. 123 (1968) and Cruz v. New York, 481 U.S. 186 (1987) controlled. (Answer, Exh. 2,
Docket # 12-2 at 31-32.) Citing Kimmelman v. Morrison, 477 U.S. 365 (1986), the court found
that when a defendant claims his constitutional rights were violated but his trial lawyer did
not timely preserve an objection to the alleged violation, the claim is reviewed in the context
of an ineffective assistance of counsel claim. (Id.) However, in so doing, the court of appeals
addressed the merits of Smith’s Bruton and Cruz argument. For these reasons, I find that
Smith’s claim was adjudicated on the merits and will not review the court of appeals’
decision de novo.
Out-of-court statements by witnesses that are testimonial are barred, under the
Confrontation Clause, unless witnesses are unavailable and the defendant had a prior
opportunity to cross-examine the witnesses, regardless of whether such statements are
deemed reliable by the court. Crawford v. Washington, 541 U.S. 36, 54-56 (2004). Smith
argues that the prosecutor reading Treadwell’s statements in the form of questions, and
Treadwell refusing to testify, deprived him of his right to confront the witness. (Petitioner’s
Br. at 23.) As the respondent notes, Smith’s right to confrontation would have been violated
had the jury been allowed to find, based on the prosecutor’s unanswered questions, that
Treadwell made the testimonial statements to the police that were the subject of the
prosecutor’s questions. (Resp. Br. at 20-21.) But Treadwell’s statements were stricken and
17
therefore were not admitted as evidence. For this reason, there was nothing to crossexamine as there was no admitted testimony.
Smith challenges the trial court’s decision to strike the testimony and issue a curative
instruction rather than grant a mistrial. Citing Bruton and Cruz, Smith argues that the
prejudice he suffered could not be remedied or cured by a jury instruction. (Petitioner’s Br.
at 24.) The court of appeals held that neither Bruton nor Cruz were applicable because both
cases involved trials where co-defendants were tried together and in both cases the
testimony was admitted, subject to a limiting instruction. (Docket # 12-5 at 16.) In Smith’s
case, Treadwell had pled guilty and had already been convicted; thus, it was not a joint trial.
Further, unlike in Bruton and Cruz where the testimony was admitted subject to a limiting
instruction, the court of appeals found that the trial court struck all of Treadwell’s afternoon
non-responsive testimony and ordered the jury to “not consider [it] in any manner
whatsoever during its deliberations.” (Id.)
Beyond asserting that “it makes no sense” that Treadwell’s “powerfully
incriminating extrajudicial statements” were “somehow less devastating to Smith because
he was not tried jointly with Treadwell,” (Petitioner’s Am. Reply Br. at 9-10), Smith points
to no law extending Bruton and Cruz’s reasoning to cases where co-defendants were not
jointly tried. Furthermore, Treadwell’s testimony was stricken. Thus, Smith has not shown
that the court of appeals’ decision was contrary to, or involved an unreasonable application
of, Bruton and Cruz. Thus, Smith is not entitled to relief as to ground two of his petition.
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3.
Ineffective Assistance of Trial Counsel
Smith argues his trial counsel was ineffective for failing to lodge a contemporaneous
objection as the state introduced Treadwell’s statements in the form of questions.
(Petitioner’s Br. at 28.)
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, Smith 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
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
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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.
In this case, the court of appeals focused on the prejudice analysis and did not
address whether counsel’s performance was deficient. Smith argues, however, that the court
of appeals applied the wrong legal standard for determining prejudice because it quoted State
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v. Smith, 207 Wis. 2d 258, 558 N.W.2d 379 (1997), which cited Lockhart v. Fretwell, 506 U.S.
364 (1993). Smith argues the Supreme Court rejected the “reliability” analysis applied by the
state court in his case. (Petitioner’s Br. at 31.) The respondent argues that the court of
appeals utilized “a typical Strickland-style analysis” in assessing his ineffective assistance of
counsel claim and further argues that the Supreme Court has said that Lockhart remains
good law. (Resp. Br. at 29.)
As the Seventh Circuit explained in Washington v. Smith, 219 F.3d 620, 632 (7th Cir.
2000), the Supreme Court in Williams v. Taylor, 529 U.S. 362 (2000) clarified the tension
between Strickland and Lockhart. The Williams Court found that Strickland governs the
prejudice inquiry in most habeas cases and that the decision in Lockhart does “‘not justify a
departure from a straight-forward application of Strickland when the ineffectiveness of
counsel does deprive the defendant of a substantive or procedural right to which the law
entitles him.’” Id. (quoting Williams, 529 U.S. at 393). Rather,
Lockhart’s heightened prejudice analysis only applies in cases where the
defendant challenges his conviction based upon unusual circumstances that,
as a matter of law, do not typically inform the court’s inquiry. For example,
such unusual circumstances could occur when a state court relies on
overruled law, see Lockhart, 506 U.S. at 384, or the defendant’s lawyer refuses
to let him commit perjury, see Nix v. Whiteside, 475 U.S. 157, 171 (1986).
Absent such unusual circumstances, Strickland’s prejudice analysis is the
proper framework for assessing a Sixth Amendment claim.
Goodman v. Bertrand, 467 F.3d 1022, 1028 (7th Cir. 2006). In Washington, the Wisconsin
Court of Appeals applied Lockhart’s prejudice standard instead of Strickland’s, even though
the defendant was not relying on the usual considerations articulated in Lockhart or Nix that
would trigger the heightened prejudice standard of Lockhart. 219 F.3d at 632. As such, the
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Seventh Circuit concluded that “[t]he Wisconsin Court of Appeals apparently did not fully
grasp the proper interaction between Strickland and Lockhart in determining that [the
petitioner] did not show prejudice, and in so doing, its decision was both ‘contrary to’ and
‘involved an unreasonable application of’ the proper prejudice analysis prescribed by the
Supreme Court.” Id.
In Smith’s case, the Wisconsin Court of Appeals cited to both Strickland and Smith,
which relies on Lockhart’s prejudice standard of determining whether counsel’s deficient
performance “renders the result of the trial unreliable or the proceeding fundamentally
unfair.” (Docket # 12-5 at 14.) Although the court of appeals cited both prejudice standards,
unlike in Washington where the court of appeals was clearly applying Lockhart, it is unclear
which standard it applied in its analysis of Smith’s claim. The court of appeals merely stated
“[t]here was no prejudice here” and “Smith was not prejudiced.” (Id. at 14-15.) As in
Washington, Smith is not relying on the usual considerations of Lockhart or Nix that would
trigger Lockhart’s prejudice standard. Thus, prejudice in Smith’s case should have been
determined under the Strickland standard, i.e., did Smith show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different? See Washington, 219 F.3d at 633 (citing Strickland, 466 U.S. at 694).
Although it is not entirely clear, the court of appeals arguably engaged in both a
Strickland prejudice analysis and a Lockhart analysis. The first paragraph of the court of
appeals’ prejudice analysis is undisputedly a Strickland analysis. The court of appeals cited to
other evidence, besides Treadwell’s statements, pointing to Smith’s guilt, including: Smith’s
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confession, witness Howard Conner, who testified that he drove Smith, Treadwell, and a
third man to the area of 21st and Vliet on April 17, 2009 around 8:30 p.m.; testimony of the
surviving victims that they saw three men with black hoodies shooting at them from across
the street; and the fact the bullet that killed the victim came from a nine millimeter gun,
which Smith admitted was the same type of gun he shot that night. (Docket # 12-5 at 15, ¶
21.) Generally, it is more difficult for a petitioner to show prejudice from counsel’s error
when there is substantial, independent evidence to support the jury’s verdict. See Stuckey v.
Hulick, 258 Fed. Appx. 891, 895 (7th Cir. 2007).
However, in the second paragraph of the prejudice analysis, the court of appeals
reasoned that Smith’s lawyer asked to keep in Treadwell’s morning testimony, even though
he did not cross examine Treadwell and both the State and Smith agreed to the trial court’s
proposed curative instruction. (Docket # 12-5 at 15, ¶ 22.) The court of appeals also noted
that the trial court read the jury the curative instruction twice and explicitly ordered the jury
to ignore everything asked of Treadwell and his non-responsiveness, stating that none of it
was evidence and should not be considered. (Id.) This analysis reads more like a
determination of whether the proceeding was fundamentally unfair.
Assuming the court of appeals incorrectly analyzed prejudice under Lockhart, Smith
has shown that the court of appeals’ decision is contrary to federal law. McNary v. Lemke,
708 F.3d 905, 913 (7th Cir. 2013) (“The state court’s decision is ‘contrary to’ federal law if it
employs the wrong legal standard established by the Supreme Court.”). The analysis,
however, does not end there. “‘Where the state court’s decision is ‘contrary to’ federal law,
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that decision is not entitled to the usual AEDPA deference and is therefore reviewed de novo
with the reviewing court applying the correct legal standard.’” Ford v. Wilson, 747 F.3d 944,
953 (7th Cir. 2014) (quoting Mosley v. Atchison, 689 F.3d 838, 844 (7th Cir. 2012)). Thus, I
must apply the correct legal standard (i.e., Strickland) to Smith’s claim, without deference to
the state court’s decision, to determine whether Smith was prejudiced by his counsel’s
failure to lodge a contemporaneous objection as the state introduced Treadwell’s statements
in the form of questions.
Applying Strickland, I do not find that Smith was prejudiced by his attorney’s errors.
Again, it is more difficult to find prejudice when there is substantial, independent evidence
supporting the jury’s verdict. In this case, the jury had strong evidence of guilt in the form of
Smith’s confession. At Smith’s trial, evidence of his recorded statement to law enforcement
was admitted, as well as a transcript of the recorded statement, marked as Exhibit 127.
(Transcript of Jury Trial on Nov. 3, 2010, Docket # 12-16 at 137-40; Transcript of Jury Trial
on Nov. 4, 2010, Docket # 12-17 at 16-17.) During this statement, Smith stated that he and
two other men were dropped off at 24th Street and Vliet (Docket # 12-21 at 24-25) and began
walking towards 26th Street and McKinley, (id. at 8). They saw a group of men and women
standing in front of a house across the street (id. at 25) and Smith “just started shootin’” and
he “shot till there wasn’t no more bullets” (id. at 8). He admitted to using a nine-millimeter
gun. (Id.) Smith stated that he did not shoot at anyone specifically, but shot above the
crowd. (Id. at 9.) Smith stated that he was wearing a black hoodie and shorts that night and
stated that after the shooting he “took off.” (Id. at 11, 24.)
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Smith’s confession is corroborated by other evidence in the record. Howard Conner,
a family friend of Smith’s, (Transcript of Jury Trial Nov. 3, 2010, Docket # 12-16 at 91)
testified that on April 17, 2009, he dropped Smith, Treadwell, and another man off at 21st
Street and Vliet a little before 8:30 p.m. (id. at 100, 106). Thus, this corroborates that Smith
was at the scene of the crime.
Also, two witnesses (including a shooting victim who survived) testified to seeing
three men across the street wearing dark clothing and hoods approach the group of people
standing outside of 2465 West McKinley in Milwaukee on April 17, 2009. (Transcript of
Jury Trial on Nov. 2, 2010, Docket # 12-13 at 44-49, 54, 56; Transcript of Jury Trial Nov. 3,
2010, Docket # 12-15 at 5, 14, 19, 21.) Smith admitted he was wearing a black hoodie that
night and Conner’s testimony confirmed Smith was with two other men.
Further, Smith stated he used a nine-millimeter gun during the shooting. During
Smith’s trial, evidence was admitted that three different caliber casing were found at the
scene, indicating that three different guns were used in the crime. (Transcript of Jury Trial
Nov. 2, 2010, Docket # 12-14 at 83, 86.) However, the victim was killed by bullets from a
nine-millimeter gun (Transcript of Jury Trial Nov. 3, 2010, Docket # 12-16 at 34) and
thirteen nine-millimeter casings were found at the scene (Docket # 12-14 at 78). All thirteen
casings came from the same gun. (Id.)
Given the substantial evidence of Smith’s guilt separate and apart from Treadwell’s
statements, I do not find that Smith was prejudiced by his attorney’s errors. For this reason,
Smith is not entitled to habeas relief on this ground. Because I find Smith is not entitled to
25
habeas relief on any of the three grounds raised, his petition for writ of habeas corpus is
denied and the case is dismissed.
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).
I do not find that jurists of reason could debate that the petition should have been
resolved in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further. Even though the Wisconsin Court of Appeals arguably
applied the wrong legal standard to Smith’s ineffective assistance of counsel claim, when
applying the correct standard, I get the same result. For these reasons, I will deny Smith a
certificate of appealability. Smith 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.
26
ORDER
NOW, THEREFORE, IT IS ORDERED that the petitioner’s petition for a writ of
habeas corpus (Docket # 1) be and hereby 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 11th day of September, 2018.
BY THE COURT:
s/Nancy Joseph ____________
NANCY JOSEPH
United States Magistrate Judge
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