King v. Smith
Filing
16
ORDER DISMISSING CASE signed by Judge J.P. Stadtmueller on 2/16/2017: 6 Petitioner's Petition for Writ of Habeas Corpus DENIED; Certificate of Appealability DENIED; action DISMISSED with prejudice. (cc: all counsel, via mail to Mario King at Oshkosh Correctional Institution)(jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MARIO KING,
Petitioner,
Case No. 16-CV-732-JPS
v.
JUDY SMITH,
ORDER
Respondent.
Mario King (“King”) was found guilty of conspiracy to possess cocaine
with intent to deliver at a jury trial in July 2013. (Docket #11-4 at 7-8). On
October 16, 2013, King was sentenced to a term of fifteen years imprisonment.
Id. at 6. King filed an amended petition for writ of habeas corpus on August 9,
2016. (Docket #6). The respondent opposed the petition on January 13, 2017,
and King submitted his reply on February 10, 2017. (Docket #14 and #15). For
the reasons explained below, the petition will be denied.
1.
BACKGROUND
The Court of Appeals opinion succinctly states the background for this
matter, so this Court will quote its opinion at length:
The State of Wisconsin charged King, an Illinois resident,
with conspiracy to possess cocaine with intent to deliver.
According to the complaint, King sold a large quantity of
cocaine to a Wisconsin resident who travelled to Chicago to
obtain the cocaine. King moved to dismiss for lack of personal
jurisdiction. King argued that his only involvement in the
alleged conspiracy occurred in Illinois. The court denied the
motion, and King was bound over for trial.
At trial, the State presented evidence of the following. In
the summer of 2009, police in Green Lake County, Wisconsin,
received a tip that Emil Craig Burmeister [(“Craig”)] was
dealing cocaine in the area. As part of the investigation into
Burmeister's activities, police received information that King
was involved. King and Burmeister are friends, and have known
each other since 2006. Burmeister travelled to Chicago
approximately every two weeks and obtained cocaine.
On August 9, 2009, Burmeister and his wife [(“Etheena”)
(collectively, the “Burmeisters”)] drove from Green Lake County
to Chicago to meet with King. In Chicago, King facilitated the
sale of a large volume of cocaine to Burmeister. Burmeister was
arrested after he returned to Green Lake County, and police
recovered 615 grams of cocaine from Burmeister's car. There
was testimony that such quantity is inconsistent with personal
use. Additionally, Burmeister had in his car a calculator, four cell
phones, and an envelope with abbreviations and numerical
amounts, indicating orders for cocaine and amounts that had
been paid. Burmeister admitted that he intended to distribute
the cocaine to others, and pled guilty to drug charges.
At the close of the State’s evidence, King moved for a
directed verdict. He argued that there was no evidence of an
agreement between King and Burmeister as to Burmeister's
intent to deliver the cocaine to other parties. The circuit court
denied the motion. The jury found King guilty and the circuit
court entered a judgment of conviction. King appeals.
State v. King, 862 N.W.2d 903 (Table), 2015 WL 1235360 at *1 (Wis. Ct. App.
2015). For reasons explained more fully below, the Court of Appeals affirmed
King’s conviction on March 19, 2015. Id. at *4. On August 5, 2015, the
Wisconsin Supreme Court declined to review that decision. (Docket #6-1 at
32).
2.
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
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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)).
3.
ANALYSIS
King’s petition attempts to state three grounds for relief, but two of
those grounds present the same legal basis and so will be treated together.
The first is that the Wisconsin state court lacked jurisdiction to adjudicate his
crime because the drug transaction occurred in Illinois. (Docket #1 at 3). The
second (grounds two and three from the petition) asserts that Wisconsin did
not present evidence sufficient to support his conviction. Id. at 3-4. The Court
addresses the claims in reverse order.
3.1
Sufficiency of the Evidence
King claims that the state did not present sufficient evidence to support
his conviction for conspiracy to possess cocaine with intent to distribute it.
(Docket #1 at 3-4 and #15 at 4-12). As described by the Seventh Circuit in Jones,
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[t]he standard of review [for such claims] is a rigorous one:
evidence, viewed in the light most favorable to the State, is
sufficient to support a conviction so long as any rational trier of
fact could find the essential elements of the offense to have been
proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319 . . . (1979). Because we consider this claim on collateral
review rather than direct appeal, the Antiterrorism and Effective
Death Penalty Act imposes an additional layer of defense onto
this inquiry: we may grant relief on this claim only if the Illinois
Appellate Court applied the Jackson standard unreasonably to
the facts of Jones’s case. § 2254(d)(1); see, e.g., Trejo v. Hulick, 380
F.3d 1031, 1032 (7th Cir. 2004).
Jones v. Butler, 778 F.3d 575, 581-82 (7th Cir. 2015). At the state court appellate
stage, King “face[d] an extremely difficult burden” to meet the Jackson
standard. United States v. Hosseini, 679 F.3d 544, 557 (7th Cir. 2012). Now, in
seeking federal habeas relief, King must labor under two layers of judicial
deference. Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012). Not only is this
Court required to maintain Jackson’s deference to the jury’s verdict, but as
noted by Jones, it cannot overturn the state court’s sufficiency determination
simply because it might disagree; King may only succeed here if the state
court’s decision was objectively unreasonable. See id.
King fails to pass this high bar. In the Court of Appeals, King argued
that the State did not establish the proper elements of the offense of
conviction pursuant to that court’s Cavallari opinion. King, 2015 WL 1235360
at *1-3. The Court of Appeals distinguished Cavallari, finding that it dealt with
a different species of drug conspiracy than what King was charged with. Id.
at *3. Even if King challenged that determination here (his petition does not
seem to mention it), errors in the application of state law are not cognizable
grounds for habeas relief. Crockett v. Butler, 807 F.3d 160, 168 (7th Cir. 2015).
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The remainder of his arguments are of the standard “sufficiency”
variety. King contends that no law enforcement officers actually observed any
drug sale transaction, that the Burmeisters memories of the incident were
questionable, that he did not give them any drugs, and that he lacked any
knowledge that they wanted to buy drugs for resale. (Docket #1 at 3-4).
Though otherwise unreviewable, a portion of the Court of Appeals’ discussion
of Cavallari is helpful to understand what the State actually needed to prove.
It held:
In Cavallari, we addressed the evidence necessary to
establish an agreement between the seller and buyer that the
buyer would deliver the purchased drugs to third parties. Here,
we must determine the evidence necessary to establish an
agreement between the seller and buyer that the buyer would
possess with intent to deliver the purchased drugs to third parties.
While Cavallari holds that more than a single sale of a large
quantity of a controlled substance is necessary to show a
conspiracy to deliver, the same does not hold true for a
conspiracy to possess with intent to deliver. While a delivery
conviction requires evidence of the act of delivering the drugs,
a conviction for possession with intent requires only the act of
possessing with the requisite intent, and intent may be inferred
from the quantity of the drugs possessed. Wis. Stat. §§ 961.41(1)
and (1m). Thus, the sale of a large quantity of drugs supports
the inference that the seller intended that the buyer possess the
drugs with intent to deliver, and that the seller entered into an
agreement with the buyer for the buyer to commit that crime.
King, 2015 WL 1235360 at *3 (emphasis in original). Applying that standard,
the Court of Appeals found that the evidence supported a finding that King
sold a large amount of cocaine to the Burmeisters. Id. This, in turn, established
the inference that King intended for Burmeister to possess the cocaine for
resale. Id. The evidence supported Burmeister’s crime of possession with
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intent to deliver and King’s conspiracy therein. Id.
The Court of Appeals’ fact determinations cited above were based
upon, inter alia, the following testimony. The Burmeisters testified that they
traveled to Chicago on August 9, 2009. Craig’s memory was quite hazy at trial,
but he remembered meeting King that day and obtaining cocaine, though he
did not confirm that it was from King. (Docket #11-6 at 197-200). Etheena’s
memory was much clearer; she testified that she gave the money to King and
he gave her the cocaine. (Docket #11-7 at 59-60) (“Q: What happened when
you met up with Mario in Chicago? Did you go anywhere else? A: I think we
drove to a gas station, and I counted the money and gave it to Mario, and he
counted it. . . . Q: And what happened when that vehicle arrived? A: Mario
got the coke, gave it to me, and we left.”). A police officer who interviewed
Craig on June 15, 2010, testified that during that interview, Craig admitted
that he met with King on the day in question and exchanged money with him
for cocaine. Id. at 36-37.
Under the deferential review required by the above-cited opinions, this
Court cannot say that the Court of Appeals unreasonably applied Jackson
deference to the jury’s verdict. A rational trier of fact, hearing this testimony,
could find that King delivered a large amount of cocaine to the Burmeisters on
August 9, 2009, with the intention that they would then resell the cocaine. His
contentions about the interruption in surveillance, Etheena’s possible drug use
affecting her memory, and his lack of knowledge of the Burmeister’s
intentions were all subject to the jury’s credibility determinations, which this
Court cannot disturb. Harmon v. McVicar, 95 F.3d 620, 623 (7th Cir. 1996) (“ It
is the fact-finder, not the appellate court that determines the credibility of
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witnesses’ testimony. . . . Given that the jury was free to make its own
credibility judgments of the witnesses, the evidence was sufficient to support
the conviction.” (citation omitted)). In any event, what the jury actually
concluded does not matter; they could have found King guilty of the charge,
and so his sufficiency claim must fail.
3.2
Jurisdiction
King argues that his only participation in the conspiracy occurred in
Illinois, so the Wisconsin court lacked jurisdiction to hear the case and enter
judgment thereon. (Docket #1 at 3 and #15 at 1-3). This is not reviewable in a
habeas petition.
As with the interpretation of the elements of King’s
conspiracy charge, it was the Court of Appeals’ exclusive province to interpret
Wisconsin’s relevant jurisdictional statute. United States ex. rel. Holliday v.
Sheriff of Du Page Cnty., Ill., 152 F.Supp.2d 1004, 1012-13 (N.D. Ill. 2001);
Kierstead v. Warden, Northern N.H. Corr. Facility, No. Civ. 05-CV-432, 2006 WL
212135 at *4 (D. N.H. Jan. 27, 2006); Yarbrough v. Eagen, No. 14-CV-10460, 2015
WL 349020 at *5 (E.D. Mich. Jan. 25, 2015). The Court of Appeals did so and
found jurisdiction was proper, and this Court has no power to review that
determination. King, 2015 WL 1235360 at *3. King’s jurisdiction claim must
also be denied.
4.
CONCLUSION
This Court finds that King’s claims are meritless and it is therefore
compelled to deny his petition. (Docket #6). Still, under Rule 11(a) of the Rules
Governing Section 2255 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),
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King 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). Further, when the Court has denied relief on procedural
grounds, the petitioner must show that jurists of reason would find it
debatable both that the “petition states a valid claim of the denial of a
constitutional right” and that “the district court was correct in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). As the Court discussed
above, reasonable jurists would not debate whether the petition should have
been resolved in a different manner. As a consequence, the Court is further
compelled to deny a certificate of appealability as to King’s petition.
Finally, the Court closes with some information about the actions that
King may take if he wishes to challenge the Court’s resolution of this case.
This order and the judgment to follow are final. A dissatisfied party may
appeal this Court’s decision to the Court of Appeals for the Seventh Circuit by
filing in this Court a notice of appeal within 30 days of the entry of judgment.
See Fed. R. App. P. 3, 4. This Court may extend this deadline if a party timely
requests an extension and shows good cause or excusable neglect for not being
able to meet the 30-day deadline. See Fed. R. App. P. 4(a)(5)(A). Moreover,
under certain circumstances, a party may ask this Court to alter or amend its
judgment under Federal Rule of Civil Procedure 59(e) or ask for relief from
judgment under Federal Rule of Civil Procedure 60(b). Any motion under
Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the entry
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of judgment. The Court cannot extend this deadline. See Fed. R. Civ. P. 6(b)(2).
Any motion under Federal Rule of Civil Procedure 60(b) must be filed within
a reasonable time, generally no more than one year after the entry of the
judgment. The court cannot extend this deadline. See Federal Rule of Civil
Procedure 6(b)(2). A party is expected to closely review all applicable rules
and determine what, if any, further action is appropriate in a case.
Accordingly,
IT IS ORDERED that the petitioner Mario King’s petition for a writ of
habeas corpus (Docket #6) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that a certificate of appealability as to the
petitioner Mario King’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 Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 16th day of February, 2017.
BY THE COURT:
J.P. Stadtmueller
U.S. District Judge
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