Patterson v. Foster
Filing
50
ORDER signed by Judge J P Stadtmueller on 9/26/2022. 41 and 48 Petitioner's Motions for Leave to File Oversized Briefs are GRANTED. 42 Petitioner's Motion for Immediate Release on PR Bond is DENIED as moot. 44 and 45 Respondent's Motions for Extensions of Time are GRANTED. 47 Petitioner's Motion for Extension of Time is GRANTED. 15 Petitioner's Amended Petition for Writ of Habeas Corpus is DENIED. Certificate of Appealability is DENIED. CASE DISMISSED with prejudice. See Order. (cc: all counsel, via mail to Brian Patterson at Fox Lake Correctional Institution)(jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BRIAN A. PATTERSON,
Petitioner,
v.
MICHAEL MEISNER,
Case No. 16-CV-745-JPS
ORDER
Respondent.
1.
INTRODUCTION
Following trial in Milwaukee County Circuit Court, a jury convicted
Brian A. Patterson (“Petitioner”) of first-degree reckless homicide.1 ECF No.
15 at 2; ECF No. 15-1 at 41. Petitioner filed a direct appeal of his conviction
and of the circuit court’s denial of his preliminary postconviction motion
with the Wisconsin Court of Appeals pursuant to Wis. Stat. § 809.30, and
then sought review with the Wisconsin Supreme Court. ECF No. 15 at 3–4,
ECF No. 15-1 at 33–40; State v. Patterson, 855 N.W.2d 491 (Table), 2014 WL
3582732 (Wis. Ct. App. July 22, 2014), review denied by 857 N.W.2d 617
(Table), (Wis. 2014). On June 22, 2015, the United States Supreme Court
denied Petitioner’s petition for a writ of certiorari. See Brian A. Patterson v.
Wisconsin, 576 U.S. 1040 (2015) (mem.).
In June 2016, Petitioner filed both a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 and a motion requesting that the Court stay his
petition and hold it in abeyance while he exhausted his state court
See Wisconsin v. Patterson, 2010CF000599 (Milwaukee Cnty. Cir. Ct.)
available at https://wcca.wicourts.gov (last visited Sept. 26, 2022).
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remedies. ECF Nos. 1, 3. Magistrate Judge David E. Jones granted
Petitioner’s motion to stay and instructed Petitioner to return to federal
court to pursue his habeas petition “within 30 days of the full exhaustion of
his claims in state court.” ECF No. 9 at 3. In September 2019, Magistrate
Judge Jones administratively closed Petitioner’s case and directed
Petitioner to ask the Court to lift the stay and re-open his case once
Petitioner’s state court litigation was complete. ECF No. 12.
On July 17, 2020, Petitioner filed a motion to vacate the stay and
abeyance, ECF No. 18, and on September 21, 2020, a motion to both reopen
his case and for leave to file an amended petition, ECF No. 21. Petitioner’s
proposed amended petition had been previously filed. ECF No. 15. On
February 22, 2021, the Court issued an order granting Petitioner’s motion
to reopen his case and his motion for leave to file his amended petition, and
denying Petitioner’s motion to vacate the stay and abeyance as moot. Id. In
the same order, the Court screened Petitioner’s amended petition,
determining that Petitioner had properly exhausted and raised eight
grounds for relief. Id.
On September 20, 2021, after Respondent Michael Meisner
(“Respondent”) filed his answer, the Court set a briefing schedule on
Petitioner’s amended petition. ECF No. 39. Thereafter, on November 12,
2021, Petitioner filed a motion for leave to file an oversized moving brief,
attaching his proposed moving brief thereto. ECF No. 41. The same day,
Petitioner filed a motion for immediate release on personal recognizance
bond pending the Court’s resolution of his amended petition. ECF No. 42.
On January 21, 2022 and February 10, 2022, respectively, Respondent filed
two motions for extensions of time to file his opposition brief. ECF Nos. 44,
45. On April 11, 2022, Petitioner filed a motion for extension of time to file
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his reply brief, and on April 15, 2022, Petitioner filed a motion for leave to
file an oversized reply brief, attaching his proposed reply brief thereto. ECF
Nos. 47, 48. The Court will grant Petitioner’s motions for leave to file
oversized moving and reply briefs and has considered the briefs attached
to the respective motions in reaching its decision, as set forth herein. ECF
Nos. 41, 48. The Court will further retroactively grant Petitioner’s and
Respondent’s motions for extensions of time. ECF Nos. 44, 45, 47. Finally,
the Court will deny as moot Petitioner’s emergency motion for release on
personal recognizance bond. ECF No. 42. For the reasons explained below,
the Court determines that Petitioner’s amended petition, ECF No. 15, must
be denied.
2.
BACKGROUND2
On February 6, 2010, Petitioner was charged with first-degree
intentional homicide for the shooting death of his cousin, Joseph McGowan
(“McGowan”). ECF No. 30-9 at 2. Petitioner pleaded not guilty, and the case
proceeded to trial. Id. At trial, Petitioner testified on his own behalf that he
acted in self-defense. Id. Specifically, Petitioner testified that tensions had
been high between McGowan and himself in the days prior to the shooting
because McGowan thought Petitioner owed McGowan’s girlfriend, Tiffany
Stephens (“Stephens”), money. Id. at 3. Additionally, Petitioner had
previously witnessed McGowan shoot another man, and McGowan had
pulled a gun on Petitioner before. Id.
On the day of the shooting, Petitioner arrived home to find Stephens
on his porch, with McGowan waiting in the car. Id. at 2. Petitioner then
The majority of the underlying facts in this Order come from the
Wisconsin Court of Appeals’ recitation. ECF No. 30-9; Patterson, 2014 WL 3582732.
2
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noticed McGowan exit his car and aggressively walk in Petitioner’s
direction, while cussing and demanding money. Id. Petitioner overheard
McGowan tell another cousin that McGowan was going to “shoot the house
up” if Petitioner did not pay. Id. Petitioner told McGowan that “if [he]
shoots [his] house up, expect to get shot in return.” Id. Petitioner and
McGowan then returned to their vehicles and ended up face-to-face. Id. at
3. Petitioner observed McGowan reach under the seat of his car. Id.
Believing that McGowan was reaching for a gun, Petitioner testified that he
pulled his own gun from his pocket and warned McGowan that he would
shoot McGowan if he did not stop advancing towards him. Id. Petitioner
then fired four or five shots because McGowan continued towards him. Id.
However, Petitioner testified that he never actually intended to kill
McGowan; he intended just to halt him. Id. Moreover, Petitioner testified
that he shot McGowan with his non-dominant hand and “did not have time
to actually aim the gun at McGowan, but rather, just reacted to the
perceived threat and started shooting.” Id.
At the close of evidence, the State moved to instruct the jury on the
offense of first-degree reckless homicide in addition to the original charge
of first-degree intentional homicide. Id. Petitioner’s counsel objected, which
objection the circuit court overruled. Id. The jury found Petitioner guilty of
first-degree reckless homicide; Petitioner was sentenced to 35 years of
imprisonment, consisting of 25 years of initial confinement and 10 years of
extended supervision. Id. at 4. Thereafter, Petitioner filed a postconviction
motion for a new trial under Wis. Stat. § 809.30, arguing that the circuit
court committed plain error when it failed to properly instruct the jury on
the State’s burden of proof for self-defense to the charge of first-degree
reckless homicide. Id.; ECF No. 30-4 at 1. Specifically, Petitioner averred
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that, because he presented evidence “that he actually believed that deadly
force was necessary to terminate an unlawful interference with his person,”
he could not have been convicted of first-degree reckless homicide. ECF No.
30-9 at 4. In the same vein, Petitioner argued that the jury instructions
improperly shifted the burden of proof to him to establish that he was
acting reasonably in self-defense. Id. The circuit court denied the motion
after examining the jury instructions, finding that the jury was properly
instructed on self-defense with respect to first-degree reckless homicide
and the State’s overall burden of proof; Petitioner thereafter appealed his
conviction and the circuit court’s denial of the motion to the Wisconsin
Court of Appeals. ECF No. 30-4 at 2; ECF No. 30-9 at 4.
On appeal, Petitioner argued that “(1) the evidence was insufficient
to convict him of first-degree reckless homicide; (2) the circuit court erred
in allowing the jury to consider the lesser included offense of first-degree
reckless homicide; (3) the circuit court erred in denying his motion for a
new trial on the grounds that the jury instruction on first-degree reckless
homicide was plain error; and (4) the circuit court erroneously exercised its
sentencing discretion.” ECF No. 30-9 at 4. The Wisconsin Court of Appeals
affirmed the circuit court on all grounds. Id. at 8. On November 13, 2014,
the Wisconsin Supreme Court denied review. ECF No. 30-10; Patterson, 857
N.W.2d 617. On June 22, 2015, the United States Supreme Court denied
Petitioner’s petition for a writ of certiorari. ECF No. 30-11; Patterson, 576
U.S. 1040.
On January 22, 2016, Petitioner filed a pro se postconviction motion
for immediate release under Wis. Stat. § 974.06 or, alternatively, for a new
trial. ECF No. 30-12. Therein, Petitioner argued that the claims subject to the
motion were not procedurally barred because they were “clearly stronger”
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than those raised in his original postconviction motion; thus, additionally,
his postconviction counsel had been ineffective for failing to raise them.
ECF No. 30-13 at 2; ECF No. 30-18 at 3; see also State v. Romero-Georgana, 849
N.W.2d 668, 679 (Wis. 2014) (to newly raise issues that could have been
raised on direct appeal in a motion for postconviction relief, a petitioner
must “show that a particular nonfrivolous issue was clearly stronger than
issues” that were presented on direct appeal) (citations omitted) (emphasis
in original).
The circuit court characterized the claims as: (1) Petitioner is actually
innocent because the jury acquitted him of second-degree intentional
homicide; (2) the State had the burden of disproving self-defense; (3) the
jury instructions denied Petitioner his rights to self-defense, to due process,
to present a defense, to jury unanimity, to verdict specificity, and to double
jeopardy; (4) Wis. Stat. §§ 940.05 (second-degree reckless homicide) and
940.02 (first-degree reckless homicide) are unconstitutionally vague; (5) the
jury instructions and verdict unconstitutionally intertwined a self-defense
acquittal with a conviction; (6) Wis. Stat. § 940.02 “with self-defense actual
beliefs is void for lack of subject matter jurisdiction”; (7) the court caused
two structural errors by arbitrarily finding Petitioner indigent and
appointing counsel; and (8) Petitioner’s trial and postconviction counsel
were ineffective in a variety of ways. ECF No. 30-13 at 2; see also ECF No.
33-12 at 13 (raising claims for ineffective assistance of trial and
postconviction counsel). The circuit court denied relief on all grounds. Id.
at 3. The Wisconsin Court of Appeals summarily affirmed on August 28,
2019, ECF No. 30-18, and the Wisconsin Supreme Court denied review on
June 16, 2020. ECF No. 30-19.
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On May 11, 2016, Petitioner filed a second pro se postconviction
motion, in which he argued that his right to select counsel of his own
choosing was violated, and that the circuit court’s order appointing counsel
violated his due process rights and should be vacated. ECF No. 30-20.
Petitioner additionally requested that the circuit court disqualify itself from
deciding the motion. Id. The circuit court denied relief on all grounds, ECF
No. 30-21, and the Wisconsin Court of Appeals affirmed on August 10, 2017.
ECF No. 30-25. The Wisconsin Supreme Court denied review on January 8,
2018. ECF No. 30-26. The instant amended petition for writ of habeas corpus
followed. ECF No. 15. The amended petition lists eight grounds for relief,
which as the Court noted in its screening order, ECF No. 25 at 4, are difficult
to parse.
The Court summarizes Petitioner’s eight grounds for relief3 as
follows: (1) because Petitioner was acquitted of first- and second- degree
intentional homicide, there was insufficient evidence to support Petitioner’s
conviction for first-degree reckless homicide, and the circuit court treated
Wis. Stat. § 940.05 (second-degree intentional homicide) and Wis. Stat. §
940.02 (first-degree reckless homicide) “disjunctively,” thus violating his
due process rights and right against double jeopardy; (2) the jury’s decision
not to convict on the first-degree intentional homicide charge means that
the jurors were not persuaded that the State negated Petitioner’s “perfect
self-defense” beyond a reasonable doubt, in violation of his due process
rights; (3) the jury instructions for the Wis. Stat. § 940.02 charge for firstdegree reckless homicide omitted self-defense elements, thus denying
Each listed ground will hereinafter be referred to as “Ground One,”
“Ground Two,” “Ground Three,” and so on.
3
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Petitioner due process, a jury trial, and a unanimous verdict; (4) the jury
was improperly instructed as to self-defense, which denied Petitioner due
process and a jury trial, because the instructions omitted that it was the
State’s burden to disprove self-defense beyond a reasonable doubt; (5) the
circuit court’s appointment of counsel prior to trial deprived Petitioner of
his constitutional rights to due process, self-representation, counsel of
choice, and a fair judge; (6) Petitioner was denied counsel, the right to
present a defense, and due process when the circuit court additionally
instructed the jury on Wis. Stat. § 940.02 (first-degree reckless homicide) at
the close of evidence; (7) ineffective assistance of trial counsel; and
(8) ineffective assistance of postconviction counsel. ECF No. 15-1 at 3–13;
ECF No. 25.
3.
LEGAL STANDARD
State criminal convictions are generally considered final. Review
may be had in federal court only on limited grounds. The federal habeas
corpus statute “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 U.S. 170, 181
(2011) (citing 28 U.S.C. § 2254(a)). Importantly, federal habeas review is not
available, and federal courts lack jurisdiction over a petition, where “the
state court rests its decision on a state procedural ground that is
independent of the federal question and adequate to support the
judgment.” Perry v. McCaughtry, 308 F.3d 682, 690 (7th Cir. 2002) (citing
Stewart v. Smith, 536 U.S. 856, 860–61 (2002)).
Where a federal habeas court does have jurisdiction, “[a]s 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
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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). The burden
of proof rests with the petitioner. Cullen, 563 U.S. at 181. The relevant
decision for this Court to review is that of the last state court to rule on the
merits of the petitioner’s claim. Charlton v. Davis, 439 F.3d 369, 374 (7th Cir.
2006). In Petitioner’s case, that would be the Wisconsin Court of Appeals’
July 22, 2014, August 10, 2017, and August 28, 2019 opinions. See supra
Section 2.
A state-court decision runs contrary to clearly established Supreme
Court precedent “if it applies a rule that contradicts the governing law set
forth in [those] cases, or if it confronts a set of facts that is materially
indistinguishable from a decision of [the Supreme] Court but reaches a
different result.” Brown v. Payton, 544 U.S. 133, 141 (2005). Similarly, a state
court unreasonably applies clearly established Supreme Court precedent
when it applies that precedent to the facts in an objectively unreasonable
manner. Id.; Bailey v. Lemke, 735 F.3d 945, 949 (7th Cir. 2013).
The AEDPA undoubtedly mandates a deferential standard of
review. The Supreme Court has “emphasized with rather unexpected
vigor” the strict limits imposed by Congress on the authority of federal
habeas courts to overturn state criminal convictions. Price v. Thurmer, 637
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F.3d 831, 839 (7th Cir. 2011). It is not enough for the petitioner to prove the
state courts were wrong; he must also prove they acted unreasonably.
Harrington v. Richter, 562 U.S. 86, 101 (2005); Campbell v. Smith, 770 F.3d 540,
546 (7th Cir. 2014) (“An ‘unreasonable application of’ federal law means
‘objectively unreasonable, not merely wrong; even ‘clear error’ will not
suffice.’”) (quoting White v. Woodall, 134 S. Ct. 1697, 1702 (2014)).
Indeed, the habeas petitioner must demonstrate that the state court
decision is “so erroneous that ‘there is no possibility fairminded jurists
could disagree that the state court’s decision conflicts with [the Supreme]
Court’s precedents.’” Nevada v. Jackson, 569 U.S. 505, 508–09 (2013) (quoting
Harrington, 562 U.S. at 102). The state court decisions must “be given the
benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002); Hartjes v.
Endicott, 456 F.3d 786, 792 (7th Cir. 2006). As the Supreme Court has
explained, “[i]f this standard is difficult to meet, that is because it was
meant to be.” Harrington, 562 U.S. at 102. Indeed, Section 2254(d) stops just
short of “imposing a complete bar on federal-court relitigation of claims
already rejected in state proceedings.” See id. This is so because “habeas
corpus is a ‘guard against extreme malfunctions in the state criminal justice
systems,’ not a substitute for ordinary error correction through appeal.” Id.
at 102–103 (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens,
J., concurring)).
4.
ANALYSIS
4.1
Grounds Five and Six
Respondent argues that Grounds Five and Six are procedurally
barred because the Wisconsin Court of Appeals relied upon “a state
procedural ground that is independent of the federal question and
adequate to support the judgment.” ECF No. 46 at 22–25 (citing Perry, 308
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F.3d at 690). As to Ground Five, Petitioner raised denial of his right to selfrepresentation in his first pro se postconviction motion. ECF No. 30-18 at 5.
Petitioner raised denial of his rights to choose his own counsel and to due
process in his second pro se postconviction motion. Id. Respondent’s
argument rests upon the Wisconsin Court of Appeals’ citations in its order
on the first pro se postconviction motion to State v. Escalona-Naranjo, 517
N.W.2d 157 (Wis. 1994) and Romero-Georgana, 849 N.W.2d 668. ECF No. 46
(citing ECF No. 30-18 at 4–7). Together, these decisions hold that “[w]ithout
a sufficient reason, a defendant may not bring a claim in a § 974.06 motion
if that claim could have been raised in a previously filed [§] 974.02 motion
and/or on direct appeal.” Romero-Georgana, 849 N.W.2d at 672 (quoting
Escalona, 517 N.W.2d at 159). Such a “sufficient reason” requires a
demonstration that the claims a defendant seeks to raise are “clearly
stronger” than the claims that were brought on direct appeal. Id. at 679. As
Respondent notes, an Escalona-Romero procedural disposition is an
adequate and independent state ground that bars federal habeas review.
Perry, 308 F.3d at 690.
As discussed, upon consideration of Petitioner’s first pro se
postconviction motion, the Wisconsin Court of Appeals cited and applied
Escalona and Romero to Petitioner’s claim of denial of his right to selfrepresentation. ECF No. 30-18 at 4, 6, 7. However, upon consideration of
Petitioner’s second pro se postconviction motion, the Wisconsin Court of
Appeals did not cite or apply either Escalona or Romero to Petitioner’s claims
of denial of his rights to choose his own counsel and to due process. ECF
No. 30-25. Moreover, as Petitioner contends, even the decision that does
apply Escalona and Romero goes on to briefly consider the merits of the claim
underlying Ground Five. The same is true for Ground Six, which Petitioner
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raised only in his first pro se postconviction motion, and which involves
Petitioner’s claim that the circuit court’s jury instructions on Wis. Stat.
§ 940.02 (first-degree reckless homicide) at the close of evidence violated his
rights to present a defense and due process. While the Wisconsin Court of
Appeals applied state law to its analysis of the merits of the claims
underlying both Grounds Five and Six, the Court cannot find that the
application is wholly independent of federal due process law sufficient to
preclude federal habeas review. Because the Wisconsin Court of Appeals
did not apply federal law to either Ground, the Court assesses whether the
Wisconsin Court of Appeals’ holdings are contrary to clearly established
federal law, as determined by the United States Supreme Court. 28 U.S.C.
§ 2254(d)(1–2).
As to that portion of Ground Five pertaining to Petitioner’s claim
that he was denied his right to self-representation, the Wisconsin Court of
Appeals determined, reviewing the trial record, that “[b]ecause [Petitioner]
decided to continue with appointed counsel when given the option to
decide how to proceed,” the circuit court’s appointment of counsel was not
erroneous. ECF No. 30-18 at 6. As to that portion of Ground Five relating to
Petitioner’s claim that he was denied his rights to choose his own counsel
and to due process, the Wisconsin Court of Appeals affirmed the circuit
court, again after reviewing the trial record, that Petitioner’s rights were not
violated because he was sitting in court when the court made the
appointment, had the opportunity to object and did not, and then
proceeded to avail himself of his court-appointed counsel’s services. ECF
No. 30-25 at 4. Regarding Petitioner’s claim that the decision appointing
him counsel was made before he had a chance to be heard in open court on
August 30, 2010, the Wisconsin Court of Appeals held that there was no due
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process violation, finding that “while the circuit court apparently signed
the order appointing Attorney Bowe on August 19, 2010, the order was not
entered—that is, filed with the clerk of court—. . . until the date of the status
conference, August 30, 2010.” Id.
The Court determines that the Wisconsin Court of Appeals’ holding
does not run contrary to clearly established federal law. “[D]ue process,
unlike some legal rules, is not a technical conception with a fixed content
unrelated to time, place and circumstances.” Mathews v. Eldridge, 424 U.S.
319, 334 (1976). Due process does not, in all circumstances, require a
“pretermination hearing as a matter of constitutional right,” provided that
a person is afforded notice and a right to be heard at some point. Id. at 333.
Indeed, “[t]he fundamental requirement of due process is the opportunity
to be heard at a meaningful time and in a meaningful manner.” Id. (citations
omitted). Because the order appointing counsel was not entered until
August 30, 2010, after Petitioner was afforded the chance to be heard as to
his right to select alternate counsel or represent himself, the Court does not
find a due process violation, nor does it find an “unconstitutional process”
prior to August 30, 2010, as Petitioner argues. ECF No. 48-1 at 22.
Consequently, the Court will deny Ground Five.
As to Ground Six, the Wisconsin Court of Appeals held, applying
Wisconsin law, that Petitioner had sufficient notice to both present a
defense and to be heard, thus supporting due process, as to the circuit
court’s jury instruction regarding the lesser offense of first-degree reckless
homicide at the close of evidence. ECF No. 30-18 at 6. This is because, under
Wisconsin law, “[w]hen a defendant is charged with a crime[,] he is
automatically put on notice that he is subject to an alternative conviction of
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any lesser-included crime; the whole contains its parts.” Id. (quoting Kirby
v. State, 272 N.W.2d 113, 116 (Wis. Ct. App. 1978)).
The Wisconsin Court of Appeals’ decision is not contrary to clearly
established federal law. As in Kirby, the United States Supreme Court has
adopted an elements analysis to determine whether jury instructions as to
a lesser offense, when a defendant is charged with a higher offense, give
sufficient “notice to the defendant that he may be convicted on either
charge.” Schmuck v. United States, 489 U.S. 705, 718 (1989). In so holding, the
Schmuck Court turned to the Court’s decision in Stevenson v. United States,
162 U.S. 313 (1896), where the Court carefully compared “the statutory
elements of murder and manslaughter to determine if the latter was a lesser
included offense of the former.” Id. (citing Stevenson, 162 U.S. 313).
Importantly, the Stevenson Court held that, despite the variance in the
requisite
mental
condition
between
common
law
murder
and
manslaughter, “the proof to show either is of the same nature, viz. the
circumstances leading up to and surrounding the killing.” 162 U.S. at 320.
In other words, proof of homicide necessarily reveals the facts under which
the killing was effectuated, and from there, the jury must determine the
defendant’s state of mind—whether that be intent or a state of mind akin to
recklessness. Id. Consequently, the Court determines that neither
Petitioner’s right to due process, nor his right to present a defense, was
violated by the circuit court’s instruction on first-degree reckless homicide.
The Court will accordingly deny Ground Six.
4.2
Grounds Three and Four
Respondent argues that Grounds Three and Four are procedurally
defaulted because Petitioner did not raise constitutional due process claims
regarding the jury instructions to the circuit court, and raised this argument
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for the first time only before the Wisconsin Court of Appeals. ECF No. 46 at
20–21. In support of his argument, Respondent cites to a portion of
Petitioner’s first appellate brief, wherein Petitioner argued, “[D]ue process
is implicated by the failure of the court to instruct a jury that it is the state’s
burden to prove that the defendant did not have a mitigated state of mind.”
ECF No. 30-5 at 32–33 (citing Falconer v. Lane, 905 F.2d 1129, 1131 (7th Cir.
1990)). The Court disagrees with Respondent that the due process claim
regarding the jury instructions is procedurally defaulted, as the exact same
quote to which Respondent cites also appears in Petitioner’s initial Wis.
Stat. § 809.30 postconviction brief to the circuit court. ECF No. 30-3 at 6.
Despite Petitioner having properly exhausted and raised (albeit
briefly) constitutional due process regarding the jury instructions, the
Wisconsin Court of Appeals did not apply federal law or consider due
process in determining that the circuit court did not commit plain error in
its issuance of the jury instructions. ECF No. 30-9 at 7–8. Instead, the
Wisconsin Court of Appeals declined review because the Wisconsin
Supreme Court has held that Wis. Stat. § 805.13(3) “prohibits [it] from
reviewing unobjected-to jury instructions,” and Petitioner conceded that he
did not object to the instructions. ECF No. 30-9 at 8. The Wisconsin Court
of Appeals further declined to exercise its discretionary reversal power to
consider the issue. Id.
This District has held that a state court’s decision to abstain from
considering an issue on the basis of Section 805.13(3)—regarding waiver
resulting from the failure to object to jury instructions—is “an adequate and
independent state law reason for deciding against” a habeas petitioner,
which precludes federal habeas review. McCarville v. Baldwin, 828 F. Supp.
626, 629 (E.D. Wis. 1993) (“The purpose of requiring an objection is to give
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the trial court an opportunity to correct the error.”). As already explained
in this Order, a federal habeas court can consider a petition only when “the
state court decision fairly appears to rest primarily on federal law, or to be
interwoven with the federal law, and when the adequacy and
independence of any possible state law ground is not clear from the face of
the opinion.” Id. As in McCarville, the Wisconsin Court of Appeals did not
consider federal law at all—let alone primarily—when declining to decide
the claim on the basis of Section 805.13(3). ECF No. 30-9 at 8.
Nonetheless, and in the interests of finality as well as the effect that
the merits of the argument has on Petitioner’s remaining Grounds, the
Court briefly addresses Petitioner’s due process argument regarding the
jury instructions. Because the Wisconsin Court of Appeals did not apply
federal law in deciding the claim, the Court assesses whether the Wisconsin
Court of Appeals’ determination that the jury instructions were not
erroneous is contrary to clearly established federal law, as determined by
the United States Supreme Court. 28 U.S.C. § 2254(d)(1–2).
The Wisconsin legislature has opted to place the burden on the State
to disprove self-defense beyond a reasonable doubt. See, e.g., Wis. J-Crim.
1016. However, while the United States Supreme Court has delegated to the
respective state legislatures the decision to reallocate the burden of proof to
the State as to affirmative defenses, “[p]roof of the nonexistence of all
affirmative defenses has never been constitutionally required.” Patterson v.
New York, 432 U.S. 197, 210–11 (1977). Indeed, the United States Supreme
Court has made clear that
We thus decline to adopt as a constitutional imperative,
operative countrywide, that a State must disprove beyond a
reasonable doubt every fact constituting any and all
affirmative defenses related to the culpability of an accused.
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Traditionally, due process has required that only the most
basic procedural safeguards be observed; more subtle
balancing of society’s interests against those of the accused
have been left to the legislative branch.
Id.
Separately, and without a doubt, the United States Supreme Court
has long held that the “Due Process Clause requires the State in criminal
prosecutions to prove guilt beyond a reasonable doubt.” Cupp v. Naughten,
414 U.S. 141, 147 (1973). But in Patterson, the United States Supreme Court
made equally clear that the due process mandate of proof beyond a
reasonable doubt as to the elements of the offense(s) is separate from the
burden of proof as to an affirmative defense, the latter of which the state
legislatures are free to delegate as they please, subject to the constitutional
limit that, inter alia, a legislature cannot declare an individual
presumptively guilty of a crime. 432 U.S. at 210–11. In so holding, the
Patterson Court reiterated that it would not “disturb the balance struck in
previous cases holding that the Due Process Clause requires the
prosecution to prove beyond a reasonable doubt all of the elements in the
definition of the offense of which the defendant is charged.” Id. at 210.
Further, the fact that “a majority of States have now assumed the burden of
disproving affirmative defenses for whatever reasons does not mean that
those States that strike a different balance are in violation of the
Constitution.” Id. at 211.
In his briefing, Petitioner confuses these distinct burdens of proof
and applications of due process. For example, Petitioner cites In re Winship,
397 U.S. 358 (1970), which holds that juveniles, like adults, are
constitutionally entitled to proof of all elements of an offense beyond a
reasonable doubt. Conversely, here, Petitioner’s argument involves the
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burden of proof as to an affirmative defense. In this case, the State’s burden of
proof beyond a reasonable doubt as to the elements of the offense was not
shifted. Indeed, the circuit court instructed the jury at least twice that it was
the State’s burden to prove all facts and elements of the offenses upon
which the jury was instructed beyond a reasonable doubt. ECF No. 30-35 at
115, 118.
This case is further unlike Falconer, 905 F.2d 1129, which Petitioner
raised before the state courts to support his due process argument. There,
the instructions were constitutionally inadequate on due process grounds
because “the jury was not told that if it found that [the petitioner] had acted
with some lesser level of justification it could not convict her of murder.”
Id. at 1133. Conversely, here, the jury was specifically instructed as to the
privilege of self-defense, and that “the law of self-defense is that the
defendant is not guilty of any homicide offense if the defendant reasonably
believed that he was preventing or terminating an unlawful interreference
with his person and reasonably believed the force was necessary to prevent
death or great bodily harm to himself.” ECF No. 30-35 at 115–16 (emphasis
added). Falconer expressly “d[id] not turn upon the presumption and
burden of proof questions,” unlike Petitioner’s argument here. Id. at 1136.
Consequently, the Court must deny Grounds Three and Four.
4.3
Grounds One and Two
Ground One involves Petitioner’s claim that, because he was
“acquitted” of first- and second- degree intentional homicide, there was
insufficient evidence to support a conviction of first-degree reckless
homicide. In other words, he argues that “because he acted in a manner that
was practically certain to kill McGowan, the State failed to prove the
elements of first-degree reckless homicide.” ECF No. 30-9 at 5. Ground Two
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involves Petitioner’s claim that because the jury did not convict on firstdegree intentional homicide, it necessarily was not persuaded that the State
negated self-defense beyond a reasonable doubt. These arguments, in large
part, have already been addressed in this Order. Nonetheless, the Court will
briefly readdress them.
Upon considering the claims underlying Grounds One and Two on
direct appeal, the Wisconsin Court of Appeals applied State v. Poellinger,
451 N.W.2d 752 (Wis. 1990), which holds that a reviewing court cannot
reverse a conviction on the basis of insufficient evidence “unless the
evidence, viewed most favorably to the [S]tate and the conviction, is so
insufficient in probative value and force that it can be said as a matter of
law that no trier of fact, acting reasonably, could have found guilt beyond
a reasonable doubt.” ECF No. 30-9 at 5 (quoting Poellinger, 451 N.W.2d at
758). Although the Wisconsin Court of Appeals applied state law, the Court
cannot determine that the application was sufficiently independent from
federal law to preclude federal habeas review. Thus, the Court assesses
whether the Wisconsin Court of Appeals’ decision “involved an
unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1–2). In this
instance, the applicable United States Supreme Court precedent is in
lockstep; a reviewing court cannot overturn a conviction for insufficiency
of the evidence unless “the government’s case against the defendant was so
lacking that the trial court should have entered a judgment of acquittal.”
Lockhart v. Nelson, 488 U.S. 33, 39 (1988).
Here, as already explained above in Section 4.1, applying the
elements test, the lesser offense of first-degree reckless homicide is included
within the offense of first-degree intentional homicide, thus permitting jury
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instructions as to both. As the United States Supreme Court instructs, once
the facts of a killing are before the jury, it is for the jury to determine the
defendant’s state of mind. Stevenson, 162 U.S. at 320. Here, as the Wisconsin
Court of Appeals observed, Petitioner admitted that he did not intend to
kill McGowan; he attempted to halt him. ECF No. 30-9 at 6. When
McGowan did not stop, Petitioner fired at McGowan using his nondominant hand, which he testified he did because “he never intended to
actually use the gun.” Id. Petitioner further testified that he did not have
time to aim the gun, and that he was unsure whether the bullets were
actually hitting McGowan. Id. The Court determines that the Wisconsin
Court of Appeals’ holding that, on these facts, a reasonable jury could find
that Petitioner possessed the requisite mindset of criminal recklessness and
utter disregard for human life to convict under Wis. Stat. § 940.02, was not
contrary to clearly established federal law.
Similarly, as to Ground Two, the Court has already explained that
there is no constitutional requirement for a state to disprove an affirmative
defense, such as self-defense, beyond a reasonable doubt. See supra Section
4.2. Moreover, Petitioner’s argument regarding the inferences attributed to
Wisconsin’s homicide statutes relies on a case that has been overruled, and
an outdated statutory code. ECF No. 41-2 at 51 (citing State v. Harp, 443
N.W.2d 38, 46 (Wis. Ct. App. 1989), overruled by State v. Camacho, 501
N.W.2d 380 (Wis. 1993)). Consequently, the Court is constrained to deny
Grounds One and Two.
4.4
Grounds Seven and Eight
As to Ground Seven, Petitioner raises myriad bases upon which he
alleges that his trial counsel was ineffective. First, Petitioner argues that his
trial counsel failed to object during the State’s closing and rebuttal
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arguments, in which the State apparently “told jurors that [Petitioner] lied
to them about the only evidence supporting [Petitioner’s] only defense.”
ECF No. 41-2 at 69. Second, Petitioner contends that his trial counsel failed
to investigate and introduce McGowan’s jacket into evidence, which would
have proved, inter alia, certain witnesses’ testimony as perjury. Id. at 79–81.
Third, Petitioner avers that his trial counsel erred by “allowing” a witness
to plead his Fifth Amendment right against self-incrimination before the
jury. Id. at 89. In support of this contention, Petitioner additionally raises a
variety of garbled arguments regarding his trial counsel’s failure to object
to purported tampering of the same witness. Id. at 89. Fourth, Petitioner
argues that his trial counsel was ineffective for failing to object to the jury
instructions. Id. at 90. Fifth, Petitioner alleges that further investigation from
his trial counsel would have permitted additional other-act testimony as to
McGowan. Id. at 92–93. Finally, Petitioner contends that his trial counsel
was ineffective for failing to raise certain claims subject to the instant
amended petition. Id. at 93.
The Wisconsin Court of Appeals heard these claims on Petitioner’s
first pro se postconviction motion; they were not raised on his direct appeal.
ECF No. 30-9; ECF No. 30-18. The Wisconsin Court of Appeals held, under
Escalona-Romero, that it was “not persuaded that any of these claims are
clearly stronger than the issues actually raised by postconviction counsel,”
and declined to address the claims any further. ECF No. 30-18 at 4, 7 (citing
Escalona, 517 N.W.2d 157; Romero-Georgana, 849 N.W.2d 668). Unlike
Grounds Five and Six, the Wisconsin Court of Appeals did not conduct any
independent determination as to the merits, and the claims are not available
for federal habeas review. In other words, the Wisconsin Court of Appeals
affirmed denial of the claims solely on independent and adequate state
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procedural grounds; there was simply no merits review that may be
sufficiently intertwined with federal law to allow for federal habeas review,
as there was with the due process analysis applicable to Grounds Five and
Six. See supra Section 4.1.
The same is true as to Ground Eight, which is Petitioner’s claim that
his postconviction counsel was ineffective for not raising many of
Petitioner’s instant arguments on direct appeal. As with Ground Seven, the
Wisconsin Court of Appeals denied the claim on Petitioner’s first pro se
postconviction motion, holding that, because it determined that none of the
issues raised in the first pro se postconviction motion were “clearly
stronger,” within the purview of Escalona-Romero, than the issues
postconviction counsel did raise on direct appeal, the claim was necessarily
meritless. ECF No. 30-18 at 4, 7. Consequently, the Wisconsin Court of
Appeals, as with Ground Seven, affirmed denial on the basis of
independent and adequate state procedural grounds without any
consideration of the merits. Federal habeas review is thus unavailable as to
Ground Eight.
The United States Supreme Court has held, however, that where an
ineffective assistance of counsel claim is procedurally defaulted and/or
barred due to actions by appointed counsel during a stage of the
proceedings where a defendant has a constitutional right to appointed
counsel, the default and/or bar may be excused. See Coleman v. Thompson,
501 U.S. 722, 755–56 (1991); see also Martinez v. Ryan, 566 U.S. 1, 11 (2012).
An indigent criminal defendant has a right to appointed counsel during
trial and during his first appeal as of right in state court. Coleman, 501 U.S.
at 755. Thus, the Court will excuse Petitioner’s procedural default and/or
bar as to Grounds Seven and Eight. Nonetheless, Petitioner’s claims of
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ineffective assistance of trial and postconviction counsel are an uneasy fit
within the United States Supreme Court’s exacting standard for ineffective
assistance of counsel claims. As the Seventh Circuit explains:
A party asserting ineffective assistance of counsel
bears the burden of establishing two elements: (1) that his trial
counsel’s performance fell below objective standards for
reasonably effective representation, and (2) that counsel’s
deficiency prejudiced the defense. Strickland v. Washington,
466 U.S. 668, 687–88 . . . (1984)[.]
To satisfy the first element of the Strickland test,
appellant must direct the Court to specific acts or omissions
by his counsel. In that context, the Court considers whether in
light of all the circumstances counsel’s performance was
outside the wide range of professionally competent
assistance. The Court’s assessment of counsel’s performance
is “highly deferential[,] . . . indulg[ing] a strong presumption
that counsel’s conduct falls within the wide range of
reasonable professional assistance[.]” [Id. at 689.]
...
To satisfy the second Strickland element, appellant
must show that there is a reasonable probability that, but for
counsel’s errors, the result of the proceedings would have
been different, such that the proceedings were fundamentally
unfair or unreliable. A reasonable probability is defined as
one that is sufficient to undermine confidence in an outcome.
Blake v. United States, 723 F.3d 870, 878–79 (7th Cir. 2013) (citations and
quotations omitted).
The Court cannot say that all fair-minded jurists would agree that a
Strickland violation occurred. At the outset, as to many of the bases that he
alleges to support his claim of ineffective assistance of his trial counsel,
Petitioner fails to state at all that, but for the alleged errors, there is a
reasonable probability that the result of the proceedings would be different.
For those bases that Petitioner does argue a reasonable probability of a
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different outcome, the argument is baldly stated following a jumbled,
stream-of-consciousness recitation of Petitioner’s speculation, coupled with
inapposite legal authority.
Even so, the Court determines that trial counsel’s performance as to
the various bases Petitioner raises was not constitutionally defective, and/or
did not create a reasonable probability that the outcome would have been
different. First, failing to object during a closing argument is not a
constitutional deficiency. “Our theory of trial relies upon the ability of a
jury to follow instructions.” Opper v. United States, 348 U.S. 84, 95 (1954).
Further, following the close of evidence, the jury has “fresh in its mind the
. . . evidence” presented by the parties; consequently, the United States
Supreme Court has held that it “do[es] not see how a less descriptive closing
argument with fewer disparaging comments . . . could have made a
significant difference.” Smith v. Spisak, 488 U.S. 139, 154–55 (2010).
Second, trial counsel’s decision not to introduce McGowan’s jacket
into evidence does not reach a level below objectively reasonable standards
for representation, nor is there a reasonable probability that introducing the
jacket would have resulted in a different outcome. Petitioner argues that
introduction of the jacket into evidence would have further credited his
testimony that McGowan was wearing a jacket at the time he was shot (and,
therefore, that Petitioner’s as-testified belief that McGowan was hiding a
gun in his jacket and reaching for one was reasonable), as well as
discredited an eyewitness’s testimony that the jacket was on the ground.
ECF No. 41-2 at 100. Petitioner further contends that the jacket itself would
support his version of events because it has bullet holes in it; moreover,
those bullet holes would corroborate that McGowan was shot from the
front while approaching Petitioner, and not from the back. Id. at 75, 80.
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The record belies Petitioner’s assertions. First, as Petitioner notes, the
medical examiner testified that some of the bullets entered McGowan from
the front, while others entered from the back. ECF No. 34-4 at 108 (one
gunshot wound entered the “front of [McGowan’s] upper arm like below
the shoulder in the front”); Id. at 130 (another gunshot wound had a
trajectory from “back to front and left to right and upward”). In line with
the medical examiner’s testimony, Petitioner testified that he shot
McGowan from the front and the State proffered testimony regarding shots
from the back. ECF No. 41-2 at 80. The Court cannot see how the jacket itself
could provide any further clarification, or alter the jury’s factfinding, as to
the direction of the shots. Similarly, Petitioner testified that McGowan
dropped the jacket to the ground, later picking it back up, which the jury as
factfinder was certainly capable of comparing to another witness’s
testimony that McGowan dropped the jacket at one point. Compare ECF No.
30-31 at 114, with ECF No. 30-35 at 22. At any rate, in the hundreds of pages
of trial testimony before it, the Court has discerned only scant and
insignificant references to the jacket. Any relevant information that could
be gleaned from the jacket was already before the jury; moreover, trial
counsel may well have strategically determined that showing the jury the
victim’s bullet hole-pierced clothing would cause more harm than good to
Petitioner’s defense.
Next, trial counsel’s decision not to object when a witness pleaded
his Fifth Amendment right against self-incrimination is not constitutionally
defective. Such a decision could rise to the level of ineffective assistance of
counsel if it violates a defendant’s Sixth Amendment right to confront and
cross-examine a witness. See, e.g., Bates v. Frakes, No. 18-CV-322, 2019 WL
2764261, at *16 (D. Neb. July 2, 2019), review denied by 2019 WL 7761576 (8th
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Cir. Oct. 17, 2019). However, Petitioner does not raise that argument before
the Court, nor did he raise it before the state courts. Additionally, the
witness underlying the claim did not end up testifying at all beyond
invoking his right against self-incrimination. ECF No. 30-33 at 118.
Therefore, there was no constitutional infirmity as to Petitioner’s ability to
cross-examine him at trial and trial counsel’s conduct as to this witness was
not ineffective.
Trial counsel further was not ineffective for failing to object to the
jury instructions. For the reasons described above, the jury instructions
were not constitutionally erroneous. See supra Section 4.2. Nor was trial
counsel ineffective for failing to raise the other claims subject to the instant
amended petition, as the Court has determined that those claims lack
merit.4 Finally, the Court does not find constitutional error in trial counsel’s
failure to further investigate other-act evidence. Petitioner’s trial counsel
succeeded at the hearing on admission of other-act evidence. The jury heard
testimony that McGowan had previously killed two men, as well as
testimony from Patterson that he had previously witnessed McGowan kill
a man. ECF No. 30-9 at 3; ECF No. 46 at 27–28. The Court is not persuaded
that testimony regarding additional other-act killings would have altered
the outcome. For all of these reasons, the Court is obliged to deny Grounds
Seven and Eight.
For the same reason, upon consideration of Petitioner’s claim regarding
postconviction counsel and in light of all attendant circumstances, the Court
cannot find that postconviction counsel was ineffective for failing to raise certain
claims on direct appeal, as the Court has deemed those same claims meritless in
this Order.
4
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5.
CONCLUSION
For the reasons stated above, Petitioner’s amended petition for writ
of habeas corpus, ECF No. 15, will be denied. 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), Petitioner 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).
When the Court has denied relief on procedural grounds, as the
Court does as to certain Grounds here, 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, no reasonable jurists could debate whether the
amended petition has merit, on either substantive or procedural grounds.
The Court must, therefore, deny Petitioner a certificate of appealability.
Accordingly,
IT IS ORDERED that Petitioner Brian A. Patterson’s motion for
leave to file an oversized moving brief, ECF No. 41, be and the same is
hereby GRANTED;
IT IS FURTHER ORDERED that Petitioner Brian A. Patterson’s
emergency motion for immediate release on personal recognizance bond,
ECF No. 42, be and the same is hereby DENIED as moot;
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IT IS FURTHER ORDERED that Respondent Michael Meisner’s
motions for extensions of time, ECF Nos. 44 and 45, be and the same are
hereby GRANTED;
IT IS FURTHER ORDERED that Petitioner Brian A. Patterson’s
motion for an extension of time, ECF No. 47, be and the same is hereby
GRANTED;
IT IS FURTHER ORDERED that Petitioner Brian A. Patterson’s
motion for leave to file an oversized reply brief, ECF No. 48, be and the
same is hereby GRANTED;
IT IS FURTHER ORDERED that Petitioner Brian A. Patterson’s
amended petition for a writ of habeas corpus, ECF No. 15, be and the same
is hereby DENIED;
IT IS FURTHER ORDERED that a certificate of appealability as to
Petitioner Brian A. Patterson’s amended petition, ECF No. 15, 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 26th day of September, 2022.
BY THE COURT:
____________________________________
J. P. Stadtmueller
U.S. District Judge
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This Order and the judgment to follow are final. A dissatisfied party may
appeal this Court’s decision to the Court of Appeals for the Seventh Circuit
by filing in this Court a notice of appeal within thirty (30) days of the entry
of judgment. See Fed. R. App. P. 3, 4. This Court may extend this deadline
if a party timely requests an extension and shows good cause or excusable
neglect for not being able to meet the thirty-day deadline. See Fed. R. App.
P. 4(a)(5)(A). 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 twenty-eight (28) days of the entry 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 id. A party is expected to closely review all
applicable rules and determine what, if any, further action is appropriate in
a case.
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