Tate v. Pollard
Filing
48
DECISION AND ORDER signed by Judge Lynn Adelman on 5/13/22 DENYING 1 Petition for Writ of Habeas Corpus. The Clerk of Court shall enter final judgment. Pursuant to Rule 11 of the Rules Governing § 2254 Cases, I find that the petitioner has not made the showing required by 28 U.S.C. § 2253(c)(2), and therefore I will not issue a certificate of appealability. (cc: all counsel and mailed to pro se party)(kmr)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BOBBY L. TATE,
Petitioner,
v.
Case No. 15-C-1469
WILLIAM POLLARD,
Respondent.
______________________________________________________________________
DECISION AND ORDER
Bobby L. Tate petitions for a writ of habeas corpus under 28 U.S.C. § 2254. He
alleges three claims of ineffective assistance of appellate counsel. Two of those claims
relate to counsel’s failure to raise Fourth Amendment issues arising out of the tracking of
his cell phone and the police’s entering an apartment in which both he and evidence of
his crimes were found. The remaining claim alleges that appellate counsel was ineffective
in failing to challenge trial counsel’s failure to raise an issue involving Tate’s plea of no
contest.
I. BACKGROUND
On the evening of June 9, 2009, officers of the Milwaukee Police Department
responded to a shooting outside of a store called Mother’s Foods Market/Magic Cell
Phones. One victim had been shot dead, and a second had been shot in the ankle and
taken to a hospital. Witnesses described the shooter as a black male wearing a striped
polo shirt. The store’s surveillance camera footage showed a person wearing a striped
polo shirt purchase a cellular telephone from inside the store, walk outside, and shoot the
victim in the back of the head. The clerk who sold the phone to the suspect told the police
that the suspect had identified himself as “Bobby.”
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Mother’s Foods provided the police with information about the phone that the
suspect had purchased, including the telephone number assigned to the phone. The
police used the number to identify the phone’s service provider. Officers then prepared
an affidavit for a court order allowing them to obtain information that would assist them in
tracking the phone’s location. The police described the details of the shooting in the
affidavit and explained that tracking the location of the phone would “reveal evidence of
the crime of First Degree Intentional Homicide.” (ECF No. 16-2 at 3.) Based on this
information, a judge of the Milwaukee County Circuit Court entered an order allowing the
police to obtain information from the service provider and to identify the physical location
of the phone. See State v. Tate, 357 Wis. 2d 172, 180 n.6 (2014).
Using information provided by the service provider and a device known as a
“stingray,” the police narrowed the phone’s location down to a particular area within a
large apartment building. Id. at 182–83. Shortly after midnight, several police officers
entered the apartment building and began knocking on the doors of the apartments within
the target area. The officers spoke with several residents before arriving at an apartment
rented by Tate’s mother, Doris Cobb.
According to testimony received at a later suppression hearing, at least three
officers arrived at Cobb’s door: Officer Eric Dillman, Officer Jason Enk, and Officer Angela
Juarez. Upon arriving at the apartment, Officer Dillman knocked on the door, and Doris
Cobb answered. Dillman testified that, when Cobb answered the door, he told her that
the police had reason to believe that a suspect who had recently committed a serious
crime was inside the apartment complex. He asked her if the police could enter her
apartment and search for this person. According to Dillman, Cobb was “cooperative” and
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said “come on in.” (ECF No. 16-15 at 25 of 106.) He testified that the officers who were
with him entered the apartment after he did. (Id. at 26 of 106.) Dillman stayed in the living
room area of the apartment while the other officers performed the search.
Officer Enk also testified at the suppression hearing. According to his testimony,
he was about ten feet away from Dillman when Dillman knocked on Cobb’s door. Enk
could not hear everything that was said, but he testified that, when the door was opened,
Dillman asked if he could come in, and he saw Dillman enter the apartment. Enk testified
that, when he saw Dillman enter, he assumed that the occupant had consented to a
search. Enk then entered the apartment and began searching.
Officer Juarez also testified at the suppression hearing. She testified that she was
in the hallway when Dillman knocked on the door of Cobb’s apartment. She testified that
she could not hear Dillman’s conversation with Cobb, but she observed him speaking with
the person who had answered the door. On cross-examination, Tate’s counsel asked
Juarez the following question: “And he’s [Dillman’s] talking to the lady at the door outside
the door? In the door? Where was he talking to her?” (ECF No. 16-15 at 54 of 106.) Juarez
answered, “Where a normal person would be talking to somebody like in the threshold, I
believe.” (Id.) Juarez testified that she was not paying attention to Dillman’s conversation
with Cobb and therefore did not hear Cobb consent to a search. However, once Dillman
went inside, Juarez followed and began searching.
The defense called Cobb to testify at the hearing. She testified that, when the
police knocked on her door, another occupant of the apartment woke her up and told her
that police officers were outside. Cobb testified that she got up to answer the door, and
that when she did so, the police told her that they were looking for “Bobby” and
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immediately entered the apartment. Cobb also testified that the police asked her if Bobby
was there, that she said that he was, and that she pointed at the room he was in. Cobb
testified that she did not give the officers consent to enter the apartment and that, after
she opened the door, the officers “just came in.” (ECF No. 16-15 at 66 of 106.)
After the officers entered the apartment, some went to a back bedroom, where
they found Tate and a woman in bed. The officers asked Tate if his name was Bobby,
and he said yes. The officers saw a striped shirt in the bedroom in plain sight, along with
a bloody shoe. The officers placed Tate in handcuffs and waited for detectives to arrive.
Once the detectives arrived, Tate was arrested, and the striped shirt and the bloody shoe
were seized.
Following his arrest, Tate was charged with first-degree intentional homicide,
second-degree reckless injury, and possession of a firearm by a felon. Eventually, Tate’s
appointed attorney, Richard Hart, Jr., filed a motion to suppress the evidence recovered
from the apartment and other evidence regarded as fruits of the search on the ground
that the search violated the Fourth Amendment and state law. Hart argued that officers
needed a search warrant to track Tate’s phone and that the order that the police had
obtained was not the equivalent of a search warrant. He also argued that Cobb’s
testimony was more credible than the officers’ on the question of whether consent was
obtained before the police entered the apartment, and that therefore the search could not
be justified based on consent. The trial court denied the motion to suppress, concluding
that the order was sufficient to allow law enforcement to track Tate’s phone to the
apartment building, that Cobb’s consent justified the search of the apartment, that the
police had probable cause to arrest Tate once he identified himself as Bobby and the
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officers saw the shirt in plain view, and that the shirt and the shoe were properly seized
after they were found in plain view.
After the court denied the motion to suppress, the state and Tate entered into a
plea agreement. Under the agreement, the charge of first-degree intentional homicide
was reduced to first-degree reckless homicide and the charge of second-degree reckless
injury was dismissed. Tate agreed to plead no contest to the reckless-homicide charge
and the charge of possession of a firearm by a felon. At a plea hearing that occurred on
May 13, 2011, Tate was represented by the same appointed attorney who represented
him at the suppression hearing, Richard Hart, Jr. Once the parties indicated that Tate
intended to enter a plea of no contest, the judge engaged Tate in a lengthy plea colloquy.
As part of the colloquy, the following exchange took place:
THE COURT: Has anyone including your lawyer made any threats
or in any way forced you to plead no contest to the charges?
THE DEFENDANT: No.
THE COURT: Other than the plea negotiations in this matter, has
anyone made any promises to you?
THE DEFENDANT: No.
THE COURT: To get you to plead no contest to the charges?
THE DEFENDANT: No.
THE COURT: Are you entering these pleas freely, voluntarily, and
intelligently with full understanding?
THE DEFENDANT: Yes.
(ECF No. 16-16 at 10.) The trial court accepted Tate’s pleas of no contest and later
sentenced him to a total of 43 years of initial confinement and 14 years of extended
supervision.
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Following his conviction and sentencing, Tate was represented by Attorney Byron
Lichstein on direct appeal. Lichstein was affiliated with the Frank J. Remington Center, a
clinical program of the University of Wisconsin Law School. Lichstein filed a brief in the
Wisconsin Court of Appeals arguing that, for several reasons, the police violated the
Fourth Amendment and state law by tracking Tate’s phone. First, Lichstein argued that
the Wisconsin Statutes did not authorize a judge to issue an order to track a cellular
telephone. Second, he argued that tracking the phone was a “search” within the meaning
of the Fourth Amendment and that the order the police had obtained did not satisfy the
Fourth Amendment’s requirements for a warrant. Here, Lichstein argued that the order
failed the Fourth Amendment’s particularity requirement for two reasons: (1) it failed to
specify actual evidence of a crime and instead described only location information, which
was not itself evidence of a crime, and (2) the order “failed to specify a location where
evidence would be found.” (ECF No. 35 at 12 of 57.) As to the second point, Lichstein
argued, in part, as follows:
The particularity requirement insists on specific evidence of a crime and a
specific location. U.S. Supreme Court caselaw is clear that both the specific
evidence and the specific location must be stated in the warrant itself, not
merely in the supporting documents. The Order here had neither. The only
description of the evidence was the generalized “evidence of first degree
intentional homicide.” The Order did authorize a search for location data,
but this was not itself evidence. Nor did the Order identify a location where
evidence would be found. This search, in other words, was the kind of broad
unspecified “general” search that the particularity requirement was
designed to protect against.
(Id. at 19–20 of 57 (citations and footnote omitted).) Lichstein did not appeal the trial
court’s factual determination that Cobb had consented to the search of her apartment.
The Wisconsin Court of Appeals determined that the Fourth Amendment question
was dispositive and did not address Lichstein’s arguments concerning statutory authority.
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The court stated that the only issue relevant to the appeal was “whether there was
probable cause to believe that location data obtained from Tate’s phone would lead to
evidence of the crime of homicide described by witnesses and shown on the surveillance
videos.” (ECF No. 16-2 at 6.) The court concluded that the warrant application contained
information from which the judge could conclude that the location data from the phone
would probably lead to evidence of the shooting, such as Tate’s clothing and the weapon.
The court also found that the phone itself was evidence of the crime in that it was evidence
of the shooter’s identity. (Id. at 8.). Finally, the court found that although the warrant did
not authorize a broad search of Cobb’s apartment, this did not matter because Cobb’s
consent justified a warrantless search of the apartment. (Id. at 8–9.)
The Wisconsin Supreme Court granted Tate’s petition for review and affirmed. See
State v. Tate, 357 Wis. 2d 172 (2014). The court addressed both Lichstein’s statutoryauthority argument and his Fourth Amendment arguments. Regarding the Fourth
Amendment, the court assumed that tracking a cellular telephone using information
provided by the service provider and a stingray constitutes a “search.” In assessing the
search’s reasonableness, the court treated the order authorizing the tracking as a
warrant, and it examined whether the order satisfied the Fourth Amendment’s
requirements of probable cause and a particularized description of the place to be
searched and the items to be seized. The court determined that probable cause was
demonstrated because the evidence that the police had collected at the scene of the
crime showed that the phone itself would likely provide evidence of the shooter’s identity.
Id. at 193–94. As to particularity, the court described Lichstein’s argument as being that
the order was invalid because it did not “specify a particular location where evidence will
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be found.” Id. at 195–96. The court held that, in the context of phone tracking, a warrant
did not have to identify a particular location but instead could satisfy the particularity
requirement by identifying the phone’s unique electronic serial number. Id. at 196–97.
Finally, the court rejected Lichstein’s statutory challenges to the tracking order. Id. at 197–
201.
On December 9, 2015, Tate, proceeding pro se, commenced this action for a writ
of habeas corpus under 28 U.S.C. § 2254. However, he immediately moved to stay the
action while he sought collateral relief in state court. A judge of this court granted his stay
request on January 20, 2016.
Back in state court, Tate first filed a petition for a writ of habeas corpus with the
Wisconsin Court of Appeals alleging that he had received ineffective assistance of
appellate counsel on direct review. As is relevant here, Tate argued that Lichstein
rendered ineffective assistance in two respects: (1) not arguing that the warrant was
invalid for failing to specify the person or things to be seized, and (2) not challenging the
trial court’s factual determination that Cobb had consented to the search of the apartment.
In rejecting Tate’s habeas petition, the court of appeals applied Strickland v. Washington,
466 U.S. 668 (1984). (ECF No. 16-6.) The court understood Tate’s first argument as being
that Lichstein should have argued that the police unlawfully monitored his phone while it
was inside his mother’s apartment. The court rejected this argument on the ground that
the warrant authorized a search of the information emitted by the phone, no matter where
the phone was located at the time, and that therefore counsel did not perform deficiently
in failing to raise this claim. As to Tate’s second argument, the court found that appellate
counsel did not perform deficiently in failing to challenge the trial court’s factual finding of
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consent because (1) factual findings are rarely overturned on appeal and (2) Tate had
failed to show that counsel could have made a strong argument that the trial court’s finding
of consent was clearly erroneous. Tate sought review of the court of appeals’ denial of
his habeas petition, but the Wisconsin Supreme Court did not accept the discretionary
appeal.
Still in state court, Tate filed a postconviction motion in the trial court under Wis.
Stat. § 974.06 arguing that his postconviction counsel, Lichstein, 1 was ineffective for not
filling a postconviction motion alleging that trial counsel was ineffective in two respects:
(1) failing to challenge the search of Cobb’s apartment on the ground that Cobb’s consent
was tainted by the officers’ entry into the apartment before consent was obtained, and (2)
failing to bring a motion to withdraw Tate’s no-contest plea on the ground that the trial
court had accepted the plea without complying with certain procedures mandated by state
law. The trial court denied the motion, and Tate appealed. The Wisconsin Court of
Appeals affirmed. Regarding Tate’s argument as to consent, the court determined that it
involved the same issue that he had raised in his prior habeas petition, which challenged
the performance of appellate counsel, and that therefore he was not entitled to relitigate
the issue through the lens of ineffective assistance of postconviction counsel and trial
counsel. As to the plea issue, the court addressed it on the merits and concluded that the
Under Wisconsin procedure, a criminal defendant may raise certain claims, such as
ineffective assistance of trial counsel, in postconviction proceedings in the trial court prior
to filing a direct appeal. The attorney representing the defendant in such proceedings is
generally referred to as postconviction counsel. See State ex rel. Rothering v.
McCaughtry, 205 Wis.2d 675 (Ct. App. 1996). In Tate’s case, no postconviction motion
was filed, but the lawyer who would have been responsible for filing one was Lichstein,
who represented Tate on direct review.
1
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trial court had complied with all requirements for accepting a plea of no contest and that
therefore trial and postconviction counsel could not have been ineffective in failing to
argue noncompliance. Tate sought review of the court of appeals’ decision by the
Wisconsin Supreme Court, but his petition for review was denied.
Having exhausted his claims in state court, Tate returned to federal court and filed
an amended petition. (Second Amended Pet., ECF No. 11.) I ordered the respondent to
file an answer and set a briefing schedule for deciding the merits of the claims raised in
the amended petition. Tate’s opening brief raises three claims of ineffective assistance of
appellate counsel: (1) Attorney Lichstein failed to adequately challenge the warrant’s lack
of particularity because he did not argue that the warrant was invalid for failing to specify
the things to be seized and the person to be seized; (2) Attorney Lichstein failed to raise
a claim of ineffective assistance of trial counsel based on trial counsel’s failure to argue
that Cobb’s consent was tainted by the officers’ pre-consent entry into the apartment; and
(3) Attorney Lichstein failed to raise a claim of ineffective assistance of trial counsel based
on trial counsel’s failure to argue that the plea colloquy did not comply with state law. I
consider these claims below. 2
II. DISCUSSION
For Tate to show that his appellate counsel was ineffective, he must show that
Attorney Lichstein's performance was deficient and that this deficiency prejudiced him.
The amended petition asserts six “grounds” for relief. Most of those grounds are
encompassed by the three issues described in the text. However, to the extent Tate
alleged claims in his petition that he has not pursued in his brief, I deem him to have
abandoned those claims. In particular, I deem Tate to have abandoned grounds one and
two of the Second Amended Petition.
2
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Strickland v. Washington, 466 U.S. 668, 687 (1984). If Lichstein abandoned a
nonfrivolous claim that was both “obvious” and “clearly stronger” than the claims that he
actually presented, then his performance was deficient, unless his choice had a strategic
justification. Shaw v. Wilson, 721 F.3d 908, 915 (7th Cir. 2013). Lichstein's deficient
performance prejudiced Tate if “there is a reasonable probability that raising the issue
would have made a difference in the outcome of the appeal.” Howard v. Gramley, 225
F.3d 784, 791 (7th Cir. 2000). A defendant whose lawyer does not provide him with
effective assistance on direct appeal and who is prejudiced by the deprivation is entitled
to a new appeal. Mason v. Hanks, 97 F.3d 887, 892 (7th Cir. 1996).
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) applies to a
habeas petition filed by a person in custody pursuant to a judgment of a state court. See
28 U.S.C. § 2254. It contains a deferential standard of review that prevents a federal court
from granting the writ with respect to any claim that was adjudicated on the merits in state
court unless the petitioner shows that the adjudication of the claim resulted in a decision
that was contrary to, or involved an unreasonable application of, clearly established
federal law as determined by the Supreme Court of the United States or was based on
an unreasonable determination of the facts in light of the evidence presented in the state
court proceeding. Id. § 2254(d). In the present case, Tate disputes that the state courts
adjudicated his two ineffective-assistance claims premised on the search on the merits,
but he concedes that the Wisconsin Court of Appeals decided his ineffective-assistance
claim premised on the acceptance of his no-contest plea on the merits. However, Tate
contends that because the court did not address the prejudice prong with respect to the
plea, I must review that prong de novo. I will not examine whether any part of the
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Wisconsin Court of Appeals’ decisions must be reviewed under § 2254(d) because, as
discussed below, even under de novo review, Tate is not entitled to habeas relief on any
claim.
A.
Failure to Challenge Lack of Description of Person and Things to be Seized
Tate first contends that Lichstein performed deficiently by failing to argue that the
order authorizing the police to track his phone did not comply with the Fourth
Amendment’s particularity requirement because it did not adequately specify a person or
things to be seized. Tate seems to believe that because the police wished to find both the
person that bought the phone and things such as the shirt worn by the person in the
surveillance video, the order authorizing the phone-tracking operation had to specifically
grant the police permission to search for and seize these items. However, the order that
the police obtained was not a warrant for Tate’s arrest or a warrant to search an area in
which Tate, the shirt, or other physical items might be found. It was, instead, an order
allowing the police to collect information about the location of a specific phone. Once the
police acquired the location information using the warrant, officers relied on exceptions to
the warrant requirement to enter Cobb’s apartment, arrest Tate, and seize the shirt and
other items. Because the warrant did not authorize the police to search for or seize the
person or physical things that the police hoped to find using the location data, the warrant
did not need to describe that person or those things with particularity. Counsel, of course,
wisely omitted this argument from his appellate briefs and therefore did not perform
deficiently in doing so.
In a related argument, Tate argues that Lichstein was deficient in failing to argue
that the warrant’s description of items to be seized—which Tate believes was “evidence
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of first degree intentional homicide”—was too general. (ECF No. 34 at 22 of 46.) But the
warrant did not allow officers to seize evidence of first-degree intentional homicide in
general; it allowed officers to seize only the phone’s location data, which was particularly
described in the warrant. In other words, “evidence of first degree intentional homicide”
was not the warrant’s description of the items to be seized. Thus, this argument, too, was
not one that Lichstein should have raised.
In his reply brief, Tate seems to argue that, even if the officers did not obtain a
warrant to search for and seize a person or physical items, the Fourth Amendment’s
particularity requirement was violated because the order authorizing the phone-tracking
operation did not specify both a place to be searched and a person or thing to be seized.
See Groh v. Ramirez, 540 U.S. 551, 557 (2004). Here, he seems to argue that because,
in his view, the Wisconsin Supreme Court treated the phone’s location data as the “place
to be searched,” such data could not also count as the “thing to be seized.” (Reply Br. at
7–11; ECF No. 43.) Therefore, Tate contends, the warrant had to identify something to
seize other than location data in order to comply with the second part of the Fourth
Amendment’s particularity requirement.
The problem with this aspect of Tate’s argument is that Lichstein challenged the
warrant’s failure to satisfy both elements of the particularity requirement on direct appeal
and therefore cannot be deemed ineffective for failing to raise this issue. Specifically,
Lichstein argued that the particularity requirement required the warrant to specify “both”
the “specific evidence” to be seized and a “specific location” to be searched. (ECF No. 35
at 19 of 57 (citing Groh, 540 U.S. at 57).) He then argued that although the order
authorized “a search for location data,” it did not “identify a location where evidence would
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be found.” (Id. at 20 of 57.) In other words, Lichstein argued that if the location data was
the evidence to be seized, 3 then the warrant was invalid for failing to identify a place to
be searched. Tate now argues that the location data was actually a place to be searched
and that therefore counsel should have argued that the warrant failed to identify a person
or things to be seized. But this is just a different way of saying that the warrant did not
specify both a place to be searched and a person or thing to be seized, as the Fourth
Amendment requires. Lichstein took the more reasonable approach of assuming that
location data was the thing to be seized and challenging the order for failing to identify a
place to be searched. Tate now takes the approach of describing location data as a place
to be searched and contends that the order failed to identify any person or thing to be
seized. But these are just two sides of the same coin. The alleged constitutional deficiency
was the warrant’s failure to specify both a place to be searched and a thing to be seized,
and the alleged deficiency would exist whether location data is described as a place to
be searched or as a thing to be seized.
In any event, even if these are technically different arguments, it is impossible to
say that Tate’s version is clearly stronger than Lichstein’s. Location data is more naturally
described as a “thing” to be acquired rather than a place to be searched. See United
States v. Sanchez-Jara, 889 F.3d 418, 421 (7th Cir. 2018) (describing location data as
“the evidence to be acquired”). Thus, the stronger argument was to assume that location
data was the thing to be seized and challenge the warrant’s failure to specify a place to
be searched. That argument did not carry the day in the Wisconsin Supreme Court, and
Lichstein also disputed that location data qualified as evidence of a crime, but this aspect
of his argument is not relevant here.
3
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it has not fared well in federal courts either. See id. (rejecting argument that phonetracking order failed Fourth Amendment’s particularity requirement because it allowed
agents “to follow the phones wherever they went”); United States. v. Brewer, 915 F.3d
408, 414 (7th Cir. 2019) (“Judges must describe the specific person, phone, or vehicle to
be tracked to satisfy the Fourth Amendment's particularity requirement. They need not
specify (or limit) the tracking to a geographic location.”). The courts have concluded that
the vice that the particularity requirement of the Fourth Amendment was designed to
prevent—the issuance of general warrants that authorize public officials to “rummage
where they please in order to see what turns up”—is not present in phone-tracking orders
directed at specifically identified phones. See Sanchez-Jara, 889 F.3d at 421; see also
Tate, 357 Wis. 2d at 197 (concluding that “the employment of the electronic serial number
for Tate’s phone satisfies the particularity requirement because that number permits a
particularized collection of cell site information for only one cell phone”). But the fact that
this argument failed does not imply that slightly modifying it from challenging the failure
to specify a location to the failure to specify a thing improves the argument, much less
makes it clearly stronger. Accordingly, Tate has not shown that his appellate counsel
rendered ineffective assistance by failing to frame his particularity argument in the way
that Tate now frames it.
B.
Failure to Argue that Consent was Tainted
Tate next argues that Lichstein was ineffective in failing to challenge trial counsel’s
ineffectiveness in not arguing that his mother’s consent to the search of her apartment
was tainted by what Tate believes was the officers’ pre-consent entry into her apartment.
As explained in the background section, trial counsel (Attorney Hart) argued at the motion
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hearing that Cobb never consented to the search at all, but the trial court credited the
officers’ testimony over Cobb’s and found as a fact that she had contented prior to the
officers’ entry. Tate now argues that Hart should have argued that Cobb actually
consented to the search, but only after officers had already entered her apartment. Tate’s
argument is based on parts of the hearing transcript that, in his view, show that under the
officers’ own testimony, they must have been inside the apartment before Cobb
consented to the search. However, as discussed below, the officers’ testimony does not
establish that any officer entered the apartment before obtaining Cobb’s consent.
Officer Dillman testified that he knocked on Cobb’s door and that, when she
answered, he asked if he could search the apartment. He testified that she immediately
said “come on in” and then escorted him into the apartment. (ECF No. 16-15 at 25 of
106.) Dillman testified that once he entered the apartment, the other officers came in
behind him. (Id. at 26 of 106.) Dillman did not testify that he or any other officer entered
the apartment before he had obtained Cobb’s consent.
Officer Enk testified on cross-examination that he entered the apartment after
Dillman. He testified as follows regarding his observation of Dillman’s interaction with
Cobb:
Q
And did you hear the conversation with Officer Dillman when he went
into the apartment to begin with?
A
No.
Q
Where were you when he knocked on the door?
A
In the hallway.
Q
How far away from him?
A
I was outside the apartment building or apartment itself so, I don’t
know, ten feet, maybe.
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Q
You didn’t hear any of the conversation?
A
No.
Q
So you saw [Dillman] knock on the door; is that correct?
A
Yes.
Q
And did you hear [him] knock on the door?
A
Yes. He was standing in the hallway knocking on the door.
Q
Then what happened?
A
It was opened. He went in and he spoke to somebody inside.
Q
So the door opened and he walked in?
A
He asked to come in, was let in by the—it was a woman who opened
the door.
Q
You said he asked to come in?
A
Yes.
Q
So you did hear some conversation?
A
Partially, yes.
(ECF No. 16-15 at 45 of 106.) Enk did not testify that any officer entered the apartment
before Dillman. Finally, Officer Juarez testified that the officers did not enter the apartment
until after Dillman did. (Id. at 54–55 of 106.) She also testified that that Dillman was
standing “in the threshold” of Cobb’s apartment while he was asking for her consent. (Id.
at 54 of 106.)
Tate contends that, because Officer Enk initially testified that Dillman “went in” and
“spoke to somebody inside” after the door was opened, Dillman must have entered the
apartment before obtaining Cobb’s consent. However, Enk did not testify that Dillman
entered the apartment before obtaining consent. When counsel specifically asked Enk
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whether Dillman walked in as soon as the door opened, Enk clarified that, when the door
opened, Dillman asked to come in.
Tate also contends that Juarez’s testimony establishes that Dillman crossed the
threshold and entered the apartment before he obtained Cobb’s consent. (ECF No. 34 at
37 of 46.) However, that is not a fair reading of the transcript. When Juarez was asked on
cross-examination whether Dillman was standing inside or outside the apartment, she
answered, “Where a normal person would be talking to somebody like in the threshold, I
believe.” (ECF No. 16-15 at 54 of 106.) A normal person who knocks on a door and asks
permission to enter normally stands on the outside of the threshold while the occupant
stands on the inside. Thus, it would be unreasonable to construe Juarez’s testimony that
Dillman was “in the threshold” as meaning that Dillman had crossed the threshold and
entered the apartment before obtaining consent.
Tate also contends that the hearing transcript shows that Officers Enk and Juarez
must have been in the apartment and searching for “approximately a minute” before
Dillman obtained Cobb’s consent. (ECF No. 34 at 39 of 46.) However, that is not the case.
As discussed above, the officers’ aggregate testimony was that Dillman knocked, Cobb
answered, Dillman obtained her consent, Dillman entered, and then the remaining officers
entered.
In short, because no officer testified that any officer entered the apartment before
Dillman obtained consent, Hart could not have performed deficiently by failing to argue
that Cobb’s consent was tainted by an illegal entry. And because Hart did not render
ineffective assistance in this respect, Lichstein could not have rendered ineffective
assistance by failing to raise Hart’s alleged ineffectiveness as an issue on direct review.
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See Stone v. Farley, 86 F.3d 712, 717 (7th Cir. 1996) (“Failure to raise a losing argument,
whether at trial or on appeal, does not constitute ineffective assistance of counsel.”).
Further, the argument that Lichstein actually raised on appeal—that the tracking order
violated the Fourth Amendment and state law—was far stronger than Tate’s non-obvious
argument that Hart was ineffective in failing to argue that the officers’ testimony
established that Cobb’s consent (which she denied giving) was tainted by an illegal entry.
Accordingly, Tate is not entitled to habeas relief on this claim.
C.
Failure to Challenge Plea Colloquy
Finally, Tate argues that Lichstein was ineffective in failing to argue that Hart was
ineffective in failing to argue that the trial court accepted Tate’s no-contest plea without
engaging in a plea colloquy that complied with Wisconsin procedures. The procedures at
issue are stated in State v. Bangert, 131 Wis. 2d 246, 261–62 (1986), and the parties
refer to a failure to follow those procedures as a “Bangert violation.” Bangert states that,
as a matter of state law, a trial court accepting a plea of guilty or no contest must make
certain inquiries of the defendant during the plea colloquy. Id. As is relevant here, Bangert
requires a state court “[t]o ascertain whether any promises or threats have been made to
[the defendant] in connection with his appearance, his refusal of counsel, and his
proposed plea of guilty,” and “[t]o make sure that the defendant understands that if [he is]
a pauper, counsel will be provided at no expense to him.” Id. at 262.
In the present case, the trial court asked Tate during the plea colloquy whether
anyone had “made any threats or in any way forced [him]” to plead no contest. (ECF No.
16-16 at 9–10.) The court also asked him whether anyone had made “any promises” to
him other than those reflected in the plea agreement. (Id. at 10.) However, the court did
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not ask Tate specifically whether any promises or threats had been made in connection
with his appearance at the plea hearing or his refusal of counsel. Further, the court did
not ask Tate whether he understood that if he could not afford counsel, counsel would be
provided to him at no expense. Tate did not refuse counsel, and he was represented by
appointed counsel at the plea hearing. Nonetheless, Tate contends that the trial court
committed Bangert violations by not specifically asking him whether threats or promises
had been made with respect to his appearance at the hearing and his refusal of counsel
and by not confirming that he understood that, if he could not afford counsel, counsel
would be appointed at no expense to him. Tate contends that Hart was ineffective in
failing to challenge his no-contest plea based on these alleged Bangert violations and
that Lichstein was ineffective in failing to bring a postconviction motion challenging Hart’s
ineffectiveness in this regard.
An initial problem with this claim is that Tate does not allege that he ever asked
Hart to file a motion to withdraw his plea. A Bangert violation is grounds for withdrawing
a plea, but it does not require that the plea be set aside even if the defendant is satisfied
with his plea. See Bangert, 131 Wis. 2d at 274 (“Whenever . . . the court-mandated duties
are not fulfilled at the plea hearing, the defendant may move to withdraw his plea.”
(Emphasis added)). Thus, even if Bangert violations had occurred, unless Hart had some
reason to know that Tate wanted to withdraw his no-contest plea, his failure to file a
motion to withdraw the plea based on those violations could not have been deficient. Tate
does not allege that he formed the desire to withdraw his plea at any time while he was
represented by Hart, much less that he conveyed any such desire to Hart during the
representation. Likewise, Tate does not allege that he told Lichstein that he told Hart that
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he wanted to withdraw his plea, and so Lichstein would have had no reason to file a
postconviction motion alleging Hart’s ineffective assistance in this regard. Thus, even if a
clear Bangert violation had occurred at the plea hearing, neither Hart nor Lichstein could
be deemed ineffective for failing to file a motion that, if granted, would have resulted in
the withdrawal of Tate’s no-contest plea.
In any event, even if for some reason Hart and Lichstein should have known that
Tate wanted to withdraw his plea, Tate would not be entitled to relief on this claim.
Banger‘s itemized list of topics to discuss during a plea colloquy is not constitutionally
mandated. The Constitution requires that a plea be knowing, intelligent, and voluntary.
Boykin v. Alabama, 395 U.S. 238, 244 (1969). The record must show that the defendant
voluntarily relinquished his privilege against self-incrimination, his right to trial by jury, and
his right to confront his accusers, id. at 242–43; United States v. Henry, 933 F.2d 553,
559 (7th Cir. 1991), and that he understood the nature of the charges and the
consequences of his plea, Galbraith v. United States, 313 F.3d 1001, 1006 (7th Cir. 2002).
But beyond these essentials, the Constitution “does not impose strict requirements on the
mechanics of plea proceedings.” United States v. Escamilla-Rojas, 640 F.3d 1055, 1062
(9th Cir. 2011). In the present case, Tate does not allege that the trial court accepted his
no-contest plea without complying with aspects of Bangert that are constitutionally
required. Instead, he alleges that the trial court did not strictly comply with the entire script
set out in Bangert.
During proceedings on Tate’s collateral attack under Wis. Stat. § 974.06, the
Wisconsin Court of Appeals determined that Tate had failed to demonstrate that the trial
court violated Bangert. (ECF No. 16-12 at 9–10.) This conclusion is binding on me, for a
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federal habeas court may not second-guess a state court’s resolution of a question of
state law, even when that question arises as part of a federal claim of ineffective
assistance of counsel. See Harper v. Brown, 865 F.3d 857, 859, 861 (7th Cir. 2017);
Shaw v. Wilson, 721 F.3d 908, 914 (7th Cir. 2013); George v. Smith, 586 F.3d 479, 483–
84 (7th Cir. 2009); Huusko v. Jenkins, 556 F.3d 633, 637 (7th Cir. 2009); Earls v.
McCaughtry, 379 F.3d 489, 495 (7th Cir. 2004). Because I am bound by the state court’s
determination that the trial court committed no Bangert violations, I must conclude that
Lichstein and Hart did not render ineffective assistance in failing to file motions alleging
that such violations occurred.
Tate contends that the Wisconsin Court of Appeals unreasonably determined the
facts when it concluded that no Bangert violations occurred. But again, a federal court
has no authority to review a state-court resolution of a state-law issue, even in the context
of a Strickland claim. This means that a federal court may not review whether the state
court unreasonably determined the facts that pertain to the state-law issue. See Harper,
865 F.3d at 861 (noting that federal court assessing Strickland claim was bound by state
court’s determination of an issue of state law even though the habeas petitioner “t[ook]
issue with the [state] court’s characterization of the facts of his case”). In any event, the
facts relevant to the Bangert claim were all contained in the transcript of the plea hearing.
The Wisconsin Court of Appeals applied Bangert to the transcript and determined that the
trial court did not omit any required inquiries. This was not an unreasonable determination
of the facts. Moreover, Tate’s challenge to the state court’s decision turns not on the
court’s determination of the facts, but on its interpretation of Bangert. Tate argues that the
Wisconsin Court of Appeals wrongly determined that Bangert did not require the trial court
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to specifically ask him if he had received threats or promises with respect to his
“appearance at the hearing” or his “decision to forgo an attorney” and that the court’s
general inquiry into whether he had received any threats or promises was sufficient. (ECF
No. 16-12 at 9–10.) Tate also contends that the court misinterpreted Bangert in
concluding that because Tate was represented by appointed counsel at the plea hearing,
the trial court was not required to specifically determine whether he understood that if he
was indigent he had a right to appointed counsel. (Id. at 10.) Again, because I am bound
by the state court’s interpretation of Bangert whether it was right or wrong, I may not
entertain these contentions. Instead, I must assume that any motion to withdraw the plea
filed by Hart based on Bangert, or any postconviction motion filed by Lichstein alleging
Hart’s ineffectiveness in failing to file such a motion to withdraw the plea, would have
failed. Accordingly, I must conclude that neither Hart nor Lichstein rendered ineffective
assistance with respect to the plea. See Stone, 86 F.3d at 717 (“Failure to raise a losing
argument, whether at trial or on appeal, does not constitute ineffective assistance of
counsel.”).
III. CONCLUSION
For the reasons stated, IT IS ORDERED that the petition for a writ of habeas
corpus is DENIED. The Clerk of Court shall enter final judgment. Pursuant to Rule 11 of
the Rules Governing § 2254 Cases, I find that the petitioner has not made the showing
required by 28 U.S.C. § 2253(c)(2), and therefore I will not issue a certificate of
appealability.
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Dated at Milwaukee, Wisconsin, this 13th day of May, 2022.
/s/Lynn Adelman_____________
LYNN ADELMAN
United States District Judge
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