Shallcross v. Pollard

Filing 31

ORDER signed by Judge J P Stadtmueller on 10/17/16: DENYING 1 Petitioner's Petition for a Writ of Habeas Corpus; DENYING a certificate of appealability as to Petitioner's Petition; and DISMISSING this action with prejudice. See Order. (cc: Petitioner, all counsel)(nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SCOTT R. SHALLCROSS,
Petitioner,

Case No. 15-CV-1136-JPS

v.
WILLIAM POLLARD,
Respondent.

ORDER

Scott R. Shallcross (Shallcross) pled guilty to two counts of homicide
by intoxicated use of a motor vehicle. (Docket #12, Exs. 1, 15). Mr. Shallcross’s
petition for a writ of habeas corpus, challenging those convictions, is now
before the Court. (Docket #1). The matter is fully briefed and ripe for
decision. (Docket #21, #25, #30).
1.

BACKGROUND
On November 27, 2009, at approximately 12:28 a.m., Mr. Shallcross

crashed his Honda Civic (Civic) into a truck while driving drunk in the City
of Milwaukee. (Docket #12, Ex. 2 ¶ 2). According to witness reports, the Civic
was driving at speeds in excess of 80-100 miles per hour just before the
collision occurred; both of the occupants of the truck—Jeremy Neuenfeldt
and Thomas Ballman—died. (Docket #12, Ex. 15 ¶ 2).
When first responders arrived at the scene, they found two survivors
in the Civic. (Docket #12, Ex. 15 ¶ 2). Mr. Shallcross was in the backseat and
Daniel Gorectke (Gorectke) was in the passenger seat. (Docket #12, Ex. 2 ¶ 2).
No one was in the driver’s seat. (Docket #12, Ex. 2 ¶ 2). After cutting the roof
off of the vehicle to reach Mr. Shallcross and Mr. Gorectke, both men were
taken to the hospital. (Docket #12, Ex. 2 ¶ 2).

During a police interview shortly thereafter, Mr. Gorectke reported
that he and Mr. Shallcross had been drinking at a bar prior to the car
accident. (Docket #12, Ex. 2 ¶ 3). According to the police report, Mr. Gorectke
stated that “[w]hen they were getting ready to leave, a person they were
talking with told them that [Mr. Gorectke] []and his friend were too drunk
to drive.…” (Docket #12, Ex. 2 ¶ 3).
The police next spoke with Mr. Shallcross at approximately 3:03 a.m.,
and requested a blood sample. (Docket #12, Ex. 2 ¶ 4). An officer and two
nurses documented Mr. Shallcross’s oral consent to the blood draw. (Docket
#12, Ex. 2 ¶ 4). The blood test performed on that sample revealed that Mr.
Shallcross had a blood alcohol content of 0.158. (Docket #12, Ex. 2 ¶ 4).
While at the scene investigating, police also interviewed a man who
reported seeing “someone cross in front of the suspect vehicle and then head
westbound.” (Docket #12, Ex. 2 ¶ 5). Though police investigated the
possibility of a third-party driver, they were not able to identify anyone, and
no local hospitals reported contact with potential suspects. (Docket #12, Ex.
2 ¶ 5).
Later that evening, police spoke with Mr. Gorectke again. (Docket #12,
Ex. 2 ¶ 6). He reported that “Shallcross wanted [him] to say that there was
someone else, a third person, in the car that was driving at the time of the
accident.” (Docket #12, Ex. 15 ¶ 6). However, Mr. Gorectke stated that Mr.
Shallcross was the driver of the Civic and that “immediately after the
accident Mr. Gorectke observed Shallcross crawling into the back seat from
the driver’s seat.” (Docket #12, 2 ¶ 6).
Two days later, on November 29, 2009, Mr. Shallcross admitted to the
police that he was driving the Civic at the time of the accident. (Docket #12,

Page 2 of 24

Ex. 2 ¶ 7). In a follow up interview on November 30, 2009, Mr. Shallcross
provided further testimony regarding his drinking prior to the incident and
how he crawled into the backseat of the car after the collision. (Docket #12,
Ex. 2 ¶ 7).
On May 14, 2010, represented by trial counsel—Matthew
Huppertz—Mr. Shallcross pled guilty to two counts of homicide by
intoxicated use of a motor vehicle in Milwaukee County Circuit Court.
(Docket #12, Ex. 15). Approximately four months later, on September 3, 2010,
the Honorable Kevin E. Martens sentenced Mr. Shallcross to two twelve-year
terms of imprisonment, which were to operate consecutively, along with a
six-year term of supervised release. (Docket #12, Ex. 1).
After pleading guilty, Mr. Shallcross retained new counsel—Thomas
Kurzynski—to file a post-conviction motion. (Docket#12, Ex. 4 ¶ 4). In those
proceedings, which will be collectively referenced by the Court hereinafter
as “Shallcross I,” Mr. Shallcross asked the court to permit him to withdraw his
guilty plea on the grounds that his trial counsel was ineffective for, inter alia,1
failing to pursue a motion to suppress his confession. (Docket #12, Ex. 4 ¶ 4).
Specifically, Mr. Shallcross argued that his inculpatory statements were made
“involuntarily” because they were made after he had allegedly invoked his

1

In this post-conviction motion, Mr. Shallcross also argued that his trial was
ineffective because he failed to take certain investigative steps and obtain
toxicology reports from the victims. (Docket #12, Ex. 4 ¶ 4). Though both the circuit
court and court of appeals ruled against Mr. Shallcross on these theories (see Docket
#12, Ex. 4 ¶¶ 4-14), Mr. Shallcross does not raise these theories in the instant
petition. (Docket #1). Accordingly, the Court will not address them.

Page 3 of 24

right to counsel under Miranda v. Arizona, 384 U.S. 436 (1966).2 (Docket #12,
Ex. 4 ¶¶ 19-28)
On October 23, 2012, the Wisconsin Court of Appeals affirmed the
circuit court’s decision to deny relief. (See generally Docket #12, Ex. 4). First,
the court of appeals ruled that Mr. Shallcross’s trial counsel had not
performed deficiently by failing to pursue a motion to suppress his
statements because Mr. Shallcross had, on various occasions during the
underlying criminal prosecution, expressly disclaimed any desire to pursue
pretrial motions. (Docket 12, Ex. 4 ¶¶ 16-18) (“The record shows that
Shallcross made the decision to accept responsibility for the crimes in this
case rather than file a suppression motion. The decision was his to make. His
lawyer did not act deficiently by abiding by that decision.”) (internal citations
omitted). Second, the appellate court ruled that Mr. Shallcross had suffered
no prejudice from trial counsel’s failure to inform Mr. Shallcross that certain
statements might have been rendered involuntarily. (Docket #12, Ex. 4 ¶¶ 1928) (concluding that Mr. Shallcross’s invocation of a lawyer was “at most”
ambiguous and that his request to talk to his mother had no constitutional
significance).
Mr. Shallcross did not file a timely appeal to the Wisconsin Supreme
Court. (Docket #12, Ex. 5) (citing Wis. Stat. § (Rule) 809.62(4)(c)).
Thereafter, Mr. Shallcross returned to state court on a motion for
collateral post-conviction relief under Wis. Stat. § 974.06. (Docket #12, Ex. 2

2

In addition, Mr. Shallcross argued that his statements were rendered
involuntarily because they were made: (1) while he was under the influence of
morphine; and (2) after he was subject to “deceitful suggestions” by law
enforcement. (Docket #12, Ex. 4 ¶¶ 22-23). Mr. Shallcross does not advance those
arguments in this petition. (Docket #1).

Page 4 of 24

¶ 1). For the sake of clarity, these proceedings will be collectively referenced
hereinafter by the Court as “Shallcross II.” In Shallcross II, Mr. Shallcross once
again challenged the effectiveness of his trial counsel and also challenged the
effectiveness of his post-conviction counsel. (Docket #12, Ex. 2 ¶ 1). More
specifically, Mr. Shallcross again argued that trial counsel was ineffective in
failing to pursue a motion to suppress his confession. This time, however,
Mr. Shallcross presented three (3) distinct theories upon which a motion to
suppress should have been made. (Docket #12, Ex. 6 at 17-34). He argued that
the statements could have been suppressed on the grounds that they were
made after: (1) the police arrested him without probable cause; (2) law
enforcement deprived him of a timely probable cause hearing under County
of Riverside v. McLaughlin, 500 U.S. 44 (1991); and (3) he had invoked his right
to counsel under Miranda. (Docket #12, Ex. 2 ¶¶ 27-31; Docket #12, Ex. 6 at 1734). Mr. Shallcross also argued that his trial counsel was ineffective for failing
to pursue a motion to suppress blood draw evidence following his
purportedly unlawful arrest. (Docket #12, Ex. 2 ¶¶ 16-26; Docket #12, Ex. 6
at 17-23, 28-30). The trial court denied the motion without an evidentiary
hearing. (Docket #1, Ex. 2 ¶ 10).
On April 21, 2015, the Wisconsin Court Appeals issued a per curiam
opinion affirming the circuit court’s decision to deny Mr. Shallcross relief and
rejecting Mr. Shallcross’s assertion that he was entitled to an evidentiary
hearing. (See generally Docket #12, Ex. 2).3 After the court of appeals issued

3

Mr. Shallcross had also argued for the first time in Shallcross II that the
lower court who presided over his post-conviction motion was biased. (Docket #12,
Ex. 2 ¶ 33). However, as he raised that issue for the first time on appeal, the court
declined to address it. (Docket #12, Ex. 2 ¶ 33). Mr. Shallcross does not dispute that
ruling. (Docket #1).

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its decision, Mr. Shallcross timely petitioned for review, but the Wisconsin
Supreme Court declined that request on September 9, 2015. (Docket #12, Ex.
3.)
2.

CLAIMS
Mr. Shallcross filed his petition for a writ of habeas corpus in this

Court on September 21, 2015. (See generally Docket #1). In that petition, Mr.
Shallcross argues that:
1.

His trial counsel was ineffective for failing to pursue a motion
to suppress evidence obtained from a blood draw following his
allegedly unlawful arrest;

2.

His trial counsel was ineffective for failing to pursue a motion
to suppress his inculpatory statements, also following the
allegedly unlawful arrest;

3.

His trial counsel was ineffective for failing to pursue a motion
to suppress his inculpatory statements after Mr. Shallcross
allegedly invoked his right to counsel under Miranda;

4.

His trial counsel was ineffective for failing to pursue a motion
to suppress his inculpatory statements because they were
allegedly obtained in violation of Riverside;

5.

His appellate counsel was ineffective for failing to provide Mr.
Shallcross “with a meaningful direct appeal”; and

6.

The trial court in Shallcross II erroneously denied him an
evidentiary hearing.

(Docket #1 at 5-12).
3.

STANDARD OF REVIEW
“Section 2254(a) permits a federal court to entertain only those

applications alleging that a person is in state custody ‘in violation of the
Constitution or laws or treaties of the United States.’” Cullen v. Pinholster, 563
Page 6 of 24

U.S. 170, 181 (2011) (citing 28 U.S.C. § 2254(a)). “As amended by [the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)], 28 U.S.C.
§ 2254 sets several limits on the power of a federal court to grant an
application for a writ of habeas corpus on behalf of a state prisoner.” Id. As
a result, the Court may grant a writ of habeas corpus only if the state court’s
decision with respect to that claim was: (1) “contrary to…clearly established
federal law, as determined by the Supreme Court of the United States”;
(2) “involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States”; or (3) “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)(1–2); see also
Conner v. McBride, 375 F.3d 643, 648–49 (7th Cir. 2004) (citing Green v. Johnson,
116 F.3d 1115, 1121 (5th Cir. 1997)). “When a state collateral review system
issues multiple decisions, [courts] typically consider the last reasoned
opinion on the claim.…” Taylor v. Grounds, 721 F.3d 809, 817 (7th Cir. 2013)
(quoting Woolley v. Rednour, 702 F.3d 411, 421 (7th Cir. 2012)).
“A state court decision is contrary to clearly established federal law if
the court applies a rule that plainly contradicts the Supreme Court’s
governing rule or if it comes to a result different than did the Supreme Court
on substantially identical facts.” Avila v. Richardson, 751 F.3d 534, 536 (7th Cir.
2014) (citing Williams v. Taylor, 529 U.S. 362, 405–06 (2000)); see also Kamlager
v. Pollard, 715 F.3d 1010, 1016 (7th Cir. 2013) (citing Bell v. Cone, 535 U.S. 685,
694 (2002)).
“A decision involves an ‘unreasonable application’ of Supreme Court
precedent if the decision, while identifying the correct governing rule of law,
applies it unreasonably to the facts of the case.” Bailey v. Lemke, 735 F.3d 945,
Page 7 of 24

949 (7th Cir. 2013) (citing Williams, 529 U.S. at 407). However, the Supreme
Court has made clear that “an unreasonable application of federal law is
different from an incorrect application of federal law.” Williams, 529 U.S. at
410 (emphasis in original). In fact, Mr. Shallcross will be entitled to habeas
relief only if he can “show that the state court’s ruling on the claim…was so
lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 562 U.S. 86,103 (2011); see also Taylor, 721
F.3d at 817.
“A decision ‘involves an unreasonable determination of the facts if it
rests upon factfinding that ignores the clear and convincing weight of the
evidence.’” Bailey, 735 F.3d at 949–50 (quoting Goudy v. Basinger, 604 F.3d 394,
399–400 (7th Cir. 2010)); see also Carter v. Thompson, 690 F.3d 837, 839 (7th
Cir.2012) (quoting 28 U.S.C. § 2254(e)(1)) (“A state court’s factual findings are
‘presumed to be correct’ in a federal habeas corpus proceeding unless they
are rebutted by ‘clear and convincing evidence.’”).
Moreover, habeas relief “is unavailable to remedy errors of state law.”
Perry v. McCaughtry, 308 F.3d 682, 688 (7th Cir. 2002) (citing Estelle v.
McGuire, 502 U.S. 62, 67–68 (1991)). The Supreme Court has “repeatedly held
that ‘it is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions.’” Washington v. Sarausad, 555 U.S. 179,
192 n.5 (2009) (quoting Estelle, 502 U.S. at 67–68).
Finally, “[i]n the case where the Wisconsin state court did not reach
the merits, § 2254 does not apply and this court applies the general habeas
standard set forth at 28 U.S.C. § 2243.” Muth v. Frank, 412 F.3d 808, 814 (7th
Cir. 2005) (citing Braun v. Powell, 227 F.3d 908, 916–17 (7th Cir. 2000)). “An
Page 8 of 24

adjudication on the merits is perhaps best understood by stating what it is
not: it is not the resolution of a claim on procedural grounds.” Id. (citing
Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001) (“‘Adjudicated on the
merits’ has a well settled meaning: a decision finally resolving the parties’
claims, with res judicata effect, that is based on the substance of the claim
advanced, rather than on a procedural, or other, ground.”)). “AEDPA’s
requirement that a petitioner’s claim be adjudicated on the merits by a state
court is not an entitlement to a well-articulated or even a correct decision
by a state court. In fact, several circuits have held that a state court need
not offer any reasons and summarily dispose of a petitioner’s claim
and that summary disposition would be an adjudication on the merits.” Id.
at 815. (collecting cases). Nonetheless, “where a state court overlooks a
constitutional claim that was fairly presented to it, federal review is de
novo.” Harris v. Thompson, 698 F.3d 609, 624 (7th Cir. 2012).
4.

ANALYSIS
Mr. Shallcross raises six grounds for relief in his habeas petition.

(Docket #1). During the course of briefing, however, Mr. Shallcross informed
the Court that he no longer seeks relief under claim five of his
petition—which relates to his post-conviction counsel’s effectiveness. (Docket
#21 at 27; Docket #30 at 5-6). Accordingly, the Court will grant that request
and first address Mr. Shallcross’s ineffective assistance of trial counsel claims;
next, the Court will address Mr. Shallcross’s claim that the circuit court
improperly denied him an evidentiary hearing in Shallcross II.
4.1

Ineffective Assistance Claims

To prevail on his claims of ineffective assistance of counsel, Mr.
Shallcross must satisfy an extremely high burden. The two-prong test set
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forth by Strickland, of course, applies to claims of ineffective assistance of
counsel, requiring a showing that: (1) counsel’s performance “fell below the
objective standard of reasonableness”; and (2) that the defendant was
“prejudiced by the deficient performance.” Thomas v. Clements, 789 F. 3d 760,
765 (7th Cir. 2015) (citing Woolley, 702 F.3d at 420–21; Strickland v. Washington,
466 U.S. 668, 687 (1984)).
But, Strickland only provides the standard to be applied on direct
review; where the Court is reviewing a state conviction under § 2254, the
Court must also apply AEDPA’s deferential standard, making its “review
‘doubly’ deferential as to those issues ruled on by the state court.” Ruhl v.
Hardy, 743 F.3d 1083, 1092 (7th Cir. 2014) (quoting Harrington, 562 U.S. at
105); see also Welch v. Hepp, 793 F.3d 734, 738 (7th Cir. 2015) (where state
appellate court has rejected a Strickland claim, “review of the state court
decision is highly deferential”) (citing Cullen, 563 U.S. at 181; Campbell v.
Reardon, 780 F.3d 752, 761 (7th Cir. 2015)). “When § 2254(d) applies, the
question is not whether counsel’s actions were reasonable. The question is
whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Harrington, 562 U.S. at 105. Thus, Mr. Shallcross will
not be entitled to relief unless he can “show that the Wisconsin appellate
court’s decision was ‘so lacking in justification’ that there is no possibility for
‘fairminded disagreement.’” Welch, 793 F.3d at 738 (quoting Harrington, 562
U.S. at 103).
In the context of a guilty plea, the prejudice prong may be explained
as a reasonable probability that, but for counsel’s errors, the petitioner would
have gone to trial instead of pleading guilty. Acevedo-Carmona v. Walter, 170
F.Supp. 2d 820, 824 (N.D. Ill. 2001). A habeas petitioner bringing an
Page 10 of 24

ineffective assistance of counsel claim must show that the state court
unreasonably applied Strickland in evaluating his claim. Julian v. Bartley, 495
F.3d 487, 494 (7th Cir. 2007). The state court’s application of Strickland must
be more than erroneous, it must be “objectively unreasonable.” Id. (citing
Yarborough v. Gentry, 540 U.S. 1, 5 (2003)).
For the reasons stated below, the Court concludes that all Mr.
Shallcross’s ineffective assistance of counsel claims—claims one, two, three,
and four—fail.
4.1.1

Motion to Suppress Blood Draw Evidence

Claim One of Mr. Shallcross’s habeas petition challenges a blood draw
that the police obtained from Mr. Shallcross at the hospital trauma center.
(Docket #1 at 5-7). That blood draw, taken at approximately 3:00 a.m. on
November 27, 2009 (the morning of the accident), revealed that Mr.
Shallcross’s blood alcohol concentration was 0.158. (Docket #12, Ex. 4 ¶ 2).
Mr. Shallcross argues that prior to his blood draw, the police arrested
him without a warrant and without probable cause, and, therefore, the
evidence obtained therefrom was the “fruit” of a Fourth Amendment
violation. (Docket #1 at 5-8). For the purpose of his habeas petition, Mr.
Shallcross argues that his trial counsel’s failure to challenge this Fourth
Amendment violation—with the objective of suppressing the results of the
blood draw—constituted ineffective assistance. (Docket #1 at 5-7). Mr.
Shallcross did not raise this argument in the context of Shallcross I. (Docket
#12, Ex. 4). Instead, he raised the issue during Shallcross II. (Docket #12, Ex.
2 ¶ 16).
In Shallcross II, the Wisconsin Court of Appeals assumed, without
deciding, that: (1) the police conducted a warrantless arrest of Shallcross
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before the blood draw; and (2) that the police lacked probable cause to arrest.
(Docket #12, Ex. 2 ¶ 17). In other words, the court assumed, without deciding,
a Fourth Amendment violation occurred. Nonetheless, the court also held
that Mr. Shallcross was not entitled to habeas relief because he did not
demonstrate that any prejudice under Strickland resulted from his trial
counsel’s failure to pursue a motion to suppress. (Docket #12, Ex. 2 ¶ 26). The
court based this conclusion on its determination that a motion to suppress
would have been fruitless because the police both: (1) complied with
Wisconsin’s implied consent statute, Wis. Stat. § 343.305; and (2) obtained Mr.
Shallcross’s actual consent. (Docket #12, Ex. 2 ¶ 26). This application of
Strickland did not: (1) result in a decision that was contrary to clearly
established federal law; (2) constitute an unreasonable application thereof;
or (3) involve an unreasonable determination of the facts.
First, the Wisconsin appellate court’s decision was not contrary to
clearly established federal law. It did not apply law that “plainly contradicts”
federal law, see Avila, 751 F.3d at 536; rather, it applied Strickland (Docket #12,
Ex. 2 ¶ 26), the Supreme Court’s standard governing ineffective assistance of
counsel claims, which still applies, see Welch, 793 F.3d at 738-39 (applying
Strickland).
Second, the Wisconsin Court of Appeals did not unreasonably apply
federal law. Rather, it reasonably examined the evidence to conclude that Mr.
Shallcross would not have been successful had his trial counsel filed a motion
to suppress evidence stemming from the blood draw. (Docket #12, Ex. 2
¶ 26).
The operative implied consent statute in effect at the time of Mr.
Shallcross’s arrest provided that:
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[i]f a person is the operator of a vehicle that is involved in an
accident that causes the death of or great bodily harm to any
person, and a law enforcement officer detects any presence of
alcohol,…the law enforcement officer may request the operator to
provide one or more samples of his or her…blood…for the
purpose [of testing]….If a person refuses to take a test under
this paragraph, he or she may be arrested under [another
statutory subsection].
(See Docket #12, Ex. 2 ¶ 18) (citing Wis. Stat. §343.305(3)(ar)(2007-08) and
noting parenthetically that the statute had been amended and replaced in
2010 with Wis. Stat. §§ 343.503(3)(ar)1-2) (emphasis added).
Here, the state court reasonably concluded that the police complied
with Wisconsin’s operative implied consent statute.4 (Docket #12, Ex. ¶¶ 2,
18-26). With respect to the “detect[ion]” of alcohol, the facts available to the
state court reasonably established that prior to the blood draw: (1) Mr.
Gorectke reported that he and Mr. Shallcross had been drinking at a bar
where another patron advised them that they “were too drunk to drive”; and
(2) the trauma center’s admission notes indicated that both emergency
medical personnel (and Mr. Shallcross himself) reported that the occupants
of the Civic consumed alcohol that evening. (Docket #12, Ex. 2 ¶ 19; Docket
#12, Ex. 11 at 4).
In addition, the court reasonably concluded that the police had
“reason to believe” that Mr. Shallcross was the driver at the time of the
accident. (Docket #12, Ex. 2 ¶ 22) (finding that the “reason to believe”
standard was “low, requiring only that the officer have ‘minimal suspicion,’”
a legal conclusion that Mr. Shallcross does not challenge herein).

4

Mr. Shallcross has never disputed, neither at the state level nor before this
Court, that death resulted from the collision on November 27, 2009.

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Immediately following the accident, the only two persons that law
enforcement found in the Civic were Mr. Gorectke and Mr. Shallcross.
(Docket #12, Ex. 2 ¶ 22). Both of them were found trapped in the vehicle, but
only Mr. Gorectke was wearing a seat belt. (Docket #12, Ex. 2 ¶ 22).
Moreover, Mr. Gorectke had been pinned in the passenger seat by the
deployed air bag, a fact highly indicative of his having been in the passenger
seat at the time of impact. (Docket #12, Ex. 2 ¶ 22). Even if an initial
eyewitness report stated that a third man was spotted in front of the vehicle
after the accident, the evidence reasonably available to the police at the time
of the blood draw was sufficient to justify a “minimal suspicion” that Mr.
Shallcross was the operator of the Civic under Wis. Stat. §343.305(3)(ar).
(Docket #12, Ex. 2 ¶¶ 21-22).
Having established that law enforcement complied with the implied
consent statute, the facts before the Wisconsin appellate court also reasonably
suggested that Mr. Shallcross actually consented to the blood draw. (Docket
#12, Ex. 2 ¶ 22). As noted by the court of appeals, Mr. Shallcross never
disputed the fact that two medical personnel, serving as witnesses, signed the
trauma center’s Consent for Legal Blood Draw, thereby attesting to Mr.
Shallcross’s oral consent to the testing. (Docket #12, Ex. 2 ¶¶ 19, 25). And,
because “[t]he Fourth Amendment's probable cause and warrant
requirements do not apply…where an authorized party voluntarily consents
to a search,” the court did not unreasonably apply federal law in concluding
that any motion to suppress the blood draw would have lacked merit. See
United States v. Parker, 469 F.3d 1074, 1077 (7th Cir. 2006) (citing Schneckloth
v. Bustamonte, 412 U.S. 218, 219 (1973)); United States v. Johnson, 427 F.3d 1053,

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1056 (7th Cir. 2005); United States v. Melgar, 227 F.3d 1038, 1041 (7th Cir.
2000).
Mr. Shallcross nonetheless claims that the Wisconsin appellate court’s
decision on this issue involved an unreasonable application of federal law
because the court did not properly consider whether his consent might, too,
have been a “fruit” of law enforcement’s unlawful arrest. (Docket #21 at 11).
And, according to Shallcross, since the government had the burden to prove
that his consent was lawful, the court of appeal’s decision involved an
unreasonable application of well established federal law. (Docket #21 at 9-13).
The court did, however, address this point, noting that “a Fourth
Amendment violation does not itself vitiate consent.” (Docket #12, Ex. 2
¶ 24). No where in the court of appeals’ decision does it indicate that the
court relieved the government from having carried its burden to show that
Mr. Shallcross’s consent was voluntary. In fact, the Court explicitly
acknowledged the government’s “burden to show consent where the
evidence is allegedly seized following a Fourth Amendment violation.”
(Docket #12, Ex. 2 ¶ 24 n. 4) (internal citations omitted). The fact that the
court weighed the medical personnel’s signatures more heavily than Mr.
Shallcross’s “conclusory assertions” regarding the involuntariness of his
consent does not, in this Court’s view, constitute an unreasonable application
of federal law. Cf. United States v. Parker, 469 F.3d 1074, 1079 (7th Cir. 2006)
(concluding that a “consent to the search constitute[d] an intervening
circumstance” even had a “custodial detention developed into an arrest
without probable cause”); United States v. Cellitti, 387 F.3d 618, 623 (7th Cir.
2004) (holding invalid a consent to search given by a defendant who was
placed in handcuffs, driven to a police station, locked in a holding cell, and

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chained to a bench for several hours after an arrest without probable cause
because consent was tainted by illegal arrest).
In sum, none of the conclusions made by the court of appeals with
respect to the blood draw were contrary to federal law, involved an
unreasonable application of clearly established federal law, or were based on
an unreasonable determination of the facts. Thus, the Wisconsin Court of
Appeals did not unreasonably apply Strickland when it decided that Mr.
Shallcross likely would not have been successful even if he filed a motion to
suppress the blood draw. And, in any event, there is no way to say that the
Wisconsin Court of Appeals’ application of Strickland “was so lacking in
justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.”
Harrington, 526 U.S. at 103. For all of these reasons, the Court is obliged to
reject Mr. Shallcross’s first ineffective assistance of counsel claim.
4.1.2

Motion to Suppress Inculpatory Statements

Next, in claims two, three, and four, Mr. Shallcross argues that his trial
counsel was ineffective for failing to pursue various motions to suppress his
confession. (Docket #1 at 8-11). In support of these claims, Mr. Shallcross
argues that three constitutional bases provided grounds for suppression:
(1) a Fourth Amendment violation for arresting Mr. Shallcross without
probable cause; (2) a Fifth Amendment Miranda violation for continuing to
question Mr. Shallcross after he invoked his right to counsel; and (3) a Fourth
Amendment violation for failing to comply with Riverside’s time-sensitive
probable cause determination requirements. (Docket #1 at 8-11). Though Mr.
Shallcross presented only his Miranda theory during the course of Shallcross

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I, he presented all three theories to the Wisconsin state courts in Shallcross II.5
(Docket #12, Ex. 2 ¶ 27; Docket #12, Ex. 6).
When addressing Mr. Shallcross’s claim in Shallcross I, the appellate
court ruled that counsel’s performance was not deficient under Strickland
because the record demonstrated that Mr. Shallcross “did not want to contest
the charges.” (Docket #12, Ex. 4 ¶¶ 16-18). In addition, the court concluded
that Mr. Shallcross suffered no prejudice from counsel’s failure to pursue a
motion to suppress on the grounds of a Miranda violation. (Docket #12, Ex.
4 ¶¶ 24-28). The court based this determination on the statements that Mr.
Shallcross made during the interview in question, which revealed that Mr.
Shallcross had merely made an “ambiguous” request about the mechanics of
getting a lawyer. (Docket #12, Ex. 4 ¶ 25) (citing to the audio recording of the
interrogation). In the court of appeals’ view, because any motion to suppress
Mr. Shallcross’s confession based on Miranda would have been fruitless, trial

5

The government argues that grounds two, three, and four are procedurally
defaulted because Mr. Shallcross failed to file for a timely review of the Wisconsin
Court of Appeals’ decision in Shallcross I. (Docket #25 at 11-19). However, the
government fails to acknowledge that Mr. Shallcross only argued the Miranda
theory in Shallcross I. (Docket #12, Ex. 4). Later, Mr. Shallcross pursued all three of
his theories in support of the motion to suppress during the course of Shallcross II.
(Docket #12, Ex. 2). While the court of appeals’ acknowledged that Mr. Shallcross
raised “new theories” in Shallcross II (Docket #12, Ex. 2 ¶ 27), neither the trial court
nor the appellate court in Shallcross II imposed any procedural bars with respect to
Mr. Shallcross’s claims. (See Docket #12, Exs. 2, 4); see also U.S. ex rel. Bell v. Pierson,
267 F.3d 544, 556 (7th Cir. 2001) (noting that where “the court did not explicitly
apply [a state] procedural bar to the facts…[and] proceeded to discuss” the merits
of a state post-conviction motion, the claim was not procedurally defaulted). Thus,
the Court will analyze the merits of Mr. Shallcross’s claims, noting that the Court’s
ultimate conclusion, in any case, is that Mr. Shallcross is not entitled to relief on his
claims—whether it be owing to procedural default or lack of merit.

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counsel did not prejudice Mr. Shallcross by foregoing such a motion. (Docket
#12, Ex. 4 ¶ 28).
In Shallcross II, Mr. Shallcross asked the Wisconsin state courts to
readdress the issue of his trial counsel’s failure to pursue motions to suppress
his confession. (Docket #12, Ex. 2 ¶ 27). However, despite Mr. Shallcross’s
presentation “new legal theories”—namely, those which arose under the
Fourth Amendment, outlined above—the Wisconsin appellate court ruled
that those claims were “unavailable” to Mr. Shallcross under the law of the
case doctrine. (Docket #12, Ex. 2 ¶¶ 27-28) (“In Shallcross I, we rejected his
claim that trial counsel was ineffective…because…trial counsel explained
[that] Shallcross chose to accept responsibility rather than file a suppression
motion.…[T]he decision to forego a suppression motion rested with
Shallcross, and his lawyer did not act deficiently by complying.…The rule is
well-settled…that a lawyer’s rational strategic decision will not support a
claim of ineffective assistance….”).
Thereafter, the court of appeals went on to address the merits of the
alleged Riverside violation. (Docket #12, Ex. 2 ¶¶ 29-31). With respect to that
argument, the appellate court concluded that Mr. Shallcross suffered no
prejudice from any purported violation because “there is no settled law on
the remedy for non-compliance with” the Riverside rule. (Docket #12, Ex. 2
¶¶ 29-31). Thus, because Mr. Shallcross could not demonstrate that there was
a reasonable probability that the outcome of the proceeding would have
changed had trial counsel presented a Riverside argument, the court held that
trial counsel was not ineffective. (Docket #12, Ex. 2 ¶¶ 30-31) (“Ineffective
assistance of counsel claims are limited to circumstances where the law is
clear.”) (internal citations omitted).
Page 18 of 24

As demonstrated by the foregoing, the Wisconsin Court of Appeals in
Shallcross II viewed all of the theories of relief upon which Mr. Shallcross
based his ineffective assistance claim as meritless. This is because in Shallcross
I, and again in Shallcross II, the court reiterated that trial counsel’s
performance—particularly with respect to the pursuit of motions to suppress
Mr. Shallcross’s inculpatory statements—was not deficient. This decision was
not contrary to, or an unreasonable application of, federal law; nor did it rest
on an unreasonable determination of the facts.
Here, the court of appeals did not unreasonably apply, or make a
decision contrary to, Strickland when it concluded that trial counsel was not
ineffective. Both at the plea stage and sentencing stage, Mr. Shallcross
expressly remarked that he did not seek to pursue motions because he
“wanted to accept responsibility” for his actions. (Docket #12, Ex. 4 ¶¶ 16-17;
Docket #12, Ex. 2 ¶¶ 27-28); see also Adams v. Bertrand, 453 F.3d 428, 434–35
(7th Cir. 2006) (“[W]e presume that counsel’s actions fall within the wide
range of reasonable professional assistance, and defer to strategic
decision-making by a trial attorney.”); Brown v. Sternes, 304 F.3d 677, 691 (7th
Cir. 2002) (“‘Review of the first prong [of the Strickland test] contemplates
deference to strategic decision making’….it is not the role of a reviewing court
to engage in a post hoc rationalization for an attorney's actions by
‘construct[ing] strategic defenses that counsel does not offer’ or engage in
Monday morning quarterbacking. “) (internal citations omitted) (emphasis
in original). Nor did the state court commit any unreasonable determination
of the facts. See Strickland, 466 U.S. at 691 (“The reasonableness of counsel's
actions may be determined or substantially influenced by the defendant's
own statements or actions.”). Indeed, Mr. Shallcross does not dispute that he
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stated, during the course of the underlying criminal prosecution, that he did
not want to pursue pretrial motions. (Docket #21 at 17-23). Thus, given Mr.
Shallcross’s express acknowledgment that he was giving up the opportunity
to pursue pretrial motions in order to plead guilty (Docket #12, Ex. 4 ¶ 17),
the Wisconsin Court of Appeals’ conclusion that trial counsel’s performance
did not rise to the level of objective deficiency was not contrary to, or an
unreasonable application of, Strickland. See United States v. Wilks, 46 F.3d 640,
644 (7th Cir. 1995) (“We have consistently held that a reasonable tactical
move which the defendant himself has condoned cannot be the basis of a
Sixth Amendment ineffective assistance claim.”).
Though it is not necessary to this decision, Atkins v. Zenk, 667 F. 3d
939, 944 (7th Cir. 2012) (“To establish ineffective assistance of counsel, Atkins
must meet both the deficient performance prong and the prejudice prong
articulated in Strickland.…”) (emphasis added), the Court also notes that Mr.
Shallcross did not meet his burden to establish prejudice as a result of his
trial counsel’s actions. With respect to the alleged Miranda violation, the
Shallcross I court reasonably based its conclusion that a motion to suppress
would be fruitless on the audio tape of Mr. Shallcross’s interrogation.
(Docket #12, Ex. 4 ¶¶ 24-28). In light of that conversation, the Court had
ample basis from which to conclude that Mr. Shallcross’s question about how
to get a lawyer did not constitute an “unequivocal” invocation of the right to
counsel—an essential legal component of his claim. See United States v.
Wysinger, 683 F.3d 784, 793 (7th Cir. 2012) (“If a suspect makes an equivocal
or ambiguous reference to a lawyer, a reference that a reasonable officer
would interpret as a statement that the suspect might be invoking the right
to counsel, there is no requirement that questioning end.”).
Page 20 of 24

With respect to the Riverside argument—assuming that more than
forty-eight (48) hours passed between Mr. Shallcross’s arrest and the
probable cause hearing6—because there was no “clearly established law”
with respect to the remedy governing a Riverside violation, Mr. Shallcross’s
allegations of prejudice were not sufficient to establish a “reasonable
probability that, but for counsel’s errors, the petitioner would have gone to
trial instead of pleading guilty.” Acevedo-Carmona, 170 F. Supp.2d at 824.
Indeed, “[w]hether a suppression remedy applies [to a Riverside violation]
remains an unresolved question” of federal law. Powell v. Nevada, 511 U.S. 79,
85 (1994). Moreover, while in Riverside “the Court clarified that a
determination of probable cause within forty-eight hours is presumptively
reasonable…[i]n the case of detentions over forty-eight hours,” the
government may nonetheless act “reasonably” so long as it can prove
that some “emergency or other extraordinary circumstance…justifie[d] the
delay.” Chortek v. City of Milwaukee, 356 F.3d 740, 746 (7th Cir. 2004) (internal
citations omitted). In light of Mr. Shallcross’s injuries and hospital stay prior
to the probable cause hearing on December 9, 2009, it was also reasonable to
conclude that the outcome of the proceeding would not have changed even
had a Riverside violation been alleged. Id. at 746-48 (“The Supreme Court
cautioned in…Riverside that, in evaluating the reasonableness of delay,
‘courts must allow a substantial degree of flexibility.’”) (quoting Riverside, 500
U.S. at 56).

6

As the court of appeals in Shallcross II noted, the lower court had
determined, based on police reports, that the police arrested Mr. Shallcross on
November 28, 2009. (Docket #12, Ex. 2¶ 29 n.5). Because it was not necessary to
their decision, however, the appellate court declined to the review the circuit
court’s finding. (Docket #12, Ex. 2¶ 29 n.5).

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Finally, though neither the Shallcross I nor Shallcross II courts
addressed the prejudice prong with respect to Mr. Shallcross’s purportedly
unlawful detention, the Court nonetheless finds that there existed ample
probable cause to support Mr. Shallcross’s arrest See United States v.
McCauley, 659 F.3d 645, 649 (7th Cir. 2011) (noting that probable cause to
arrest exists if the arresting officers possess “knowledge from reasonably
trustworthy information that would lead a prudent person to believe that a
suspect has committed a crime.”) (internal quotations omitted). Based on the
police reports, the trial court determined that the arrest of Mr. Shallcross
occurred on November 28, 2009. (Docket #12, Ex. 6 at 17). This arrest,
therefore, occurred after Mr. Gorectke informed the police that he
remembered Mr. Shallcross: (1) driving the Civic the night of the accident; (2)
crawling into the backseat after the crash; and (3) telling Mr. Gorectke to lie
to the police about a third-party driver. (Docket #12, Ex. 6 at 22; Docket #12,
Ex. 11 at 15). Thus, trial counsel’s failure to pursue a motion to suppress on
this ground did not cause Mr. Shallcross to suffer any prejudice as there can
be no doubt that ample probable cause supported the arrest.
Accordingly, Mr. Shallcross’s claims two, three, and four lack merit
and will be dismissed.
4.3

Denial of Evidentiary Hearing

Finally, Mr. Shallcross argues that the circuit court in Shallcross II
improperly denied him an evidentiary hearing. (Docket #1 at 12; #21 at 27;
#30 at 9). The Wisconsin appellate court rejected Mr. Shallcross’s claim that
he was entitled to an evidentiary hearing on his state post-conviction motion
because “the record conclusively show[ed] that [he] [wa]s not entitled to

Page 22 of 24

relief.” (Docket #12, Ex. 2 ¶ 32).7 Mr. Shallcross’s alleged entitlement to an
evidentiary hearing, however, was the subject of state law. (Docket #12, Ex.
2 ¶ 32) (citing State v. Balliette, 2011 WI 79 ¶ 118, 336 Wis. 2d 358, 805 N.W.2d
334). Thus, because habeas relief “is unavailable to remedy errors of state
law,” this Court must deny Mr. Shallcross’s sixth claim for relief. See Perry,
308 F.3d at 688.
5.

CONCLUSION

Because Mr. Shallcross has not established any basis for habeas relief,
the Court is obliged to deny his petition for a writ of habeas corpus. Under
Rule 11(a) of the Rules Governing Section 2254 Cases, “the district court must
issue or deny a certificate of appealability when it enters a final order adverse
to the applicant.” To obtain a certificate of appealability under 28 U.S.C.
§ 2253(c)(2), Mr. Shallcross must make a “substantial showing of the denial
of a constitutional right” by establishing 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.” Miller-El v. Cockrell, 537 U.S. 322,
336 (2003) (internal citations omitted). While Rule 11(a) permits a district
court to direct the parties to submit arguments on whether a certificate of
appealability should be issued, additional arguments are not necessary here.
As the Court discussed extensively above, reasonable jurists would not
debate whether the petition should have been resolved in a different manner.
Mr. Shallcross’s claims are wholly without merit. No reasonable jurist would
7

Mr. Shallcross had also argued, for the first time, that the circuit court who
presided over his post-conviction motion was biased. (Docket #12, Ex. 2 ¶ 33).
However, as he raised that issue for the first time on appeal, the court did not
address it. (Docket #12, Ex. 2 ¶ 33).

Page 23 of 24

find it debatable that Mr. Shallcross’s petition fails to make any showing—let
alone a substantial showing—of a violation of a constitutional right. As a
consequence, the court must deny a certificate of appealability as to Mr.
Shallcross’s petition.
Accordingly,
IT IS ORDERED that Mr. Shallcross’s petition for a writ of habeas
corpus (Docket #1) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that a certificate of appealability as to the
Mr. Shallcross’s petition be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that this action be and the same is hereby
DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 17th day of October, 2016.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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