Patterson v. Foster
Filing
62
ORDER signed by Judge J P Stadtmueller on 12/19/2022; IT IS ORDERED that Petitioner Brian A. Pattersons motion for relief from judgment, ECF No. 54 is DENIED. (cc: all counsel, via mail to Brian Patterson at Fox Lake Correctional Institution )(bx)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BRIAN A. PATTERSON,
Petitioner,
v.
MICHAEL MEISNER,
Case No. 16-CV-745-JPS
7th Cir. Case No. 22-3001
ORDER
Respondent.
1.
INTRODUCTION
On September 26, 2022, the Court issued an order denying Petitioner
Brian A. Patterson’s (“Petitioner”) amended petition for writ of habeas
corpus pursuant to 28 U.S.C. 2254, ECF No. 15, and entered judgment
accordingly. ECF Nos. 50, 51. On October 20, 2022, the Court received
Petitioner’s motion (dated October 17, 2022) for a 30-day extension of time
to file his notice of appeal. ECF No. 53. On October 24, 2022, the Court
granted Petitioner’s motion in part and allowed him until November 7, 2022
to file his notice of appeal. ECF No. 53. On November 4, 2022, Petitioner
timely filed his notice of appeal. ECF No. 56. In the interim, on October 27,
2022, the Court received Petitioner’s motion (dated October 25, 2022) for
relief from judgment and reconsideration under Federal Rules of Civil
Procedure 59 and 60.1 ECF No. 54. This Order addresses that motion.
The motion states that it is brought under Federal Rules of Civil Procedure
59(a)(2), and 60(b)(1), (3), and (6). Rule 59(a)(2) deals with a motion for a new trial
following a trial to the court (rather than to a jury). No trial took place in this 28
U.S.C. § 2254 action. Thus, the Court construes the portion of the motion brought
under Rule 59 as a Rule 59(e) motion to alter or amend a judgment.
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2.
TIMELINESS AND LEGAL STANDARD
The “prison mailbox rule” provides that “a notice of appeal filed by
a pro se prisoner would be considered ‘filed’ at the moment of delivery to
the prison authorities, rather than at a later point in time after the
authorities had forwarded the notice to the court and the court had formally
recorded its receipt.” Edwards v. United States, 266 F.3d 756, 758 (7th Cir.
2001) (citations omitted). In Edwards, the Seventh Circuit confronted the
question of whether the prison mailbox rule “should apply to a pro se
prisoner’s filing of a motion under Rule 59(e) as well,” and answered the
question in the affirmative. Id. The date of filing for purposes of the prison
mailbox rule is the date that the pro se prisoner “certifie[s] to the court that
he deposited the motion in the prison mailbox with the correct postage.” Id.
In Petitioner’s case, his certification states that he “placed th[e] motion in
the Institution’s mailbox with prepaid first-class postage on Tuesday,
October 25, 2022.” Id.
Petitioner’s Rule 59(e) motion is untimely. Rule 59(e) provides that a
motion to alter or amend a judgment “must be filed no later than 28 days
after the entry of the judgment.” The same was reiterated in the Court’s
order denying Petitioner’s amended petition. ECF No. 50 at 29. The Court’s
order and judgment were entered September 26, 2022; Petitioner’s motion
was filed under the prison mailbox rule on October 25, 2022, which was one
day too late. The Court has no discretion over the motion’s timeliness and
may not extend the deadline. Fed. R. Civ. P. 6(b)(2).
However, the Seventh Circuit has “established a bright-line rule that
any [Rule 59(e) motion for reconsideration filed after the deadline must be
construed as a motion to vacate” under Rule 60(b). Williams v. Illinois, 737
F.3d 473, 475 (7th Cir. 2013) (citing Justice v. Town of Cicero, III, 682 F.3d 662,
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665 (7th Cir. 2012)). “Relief under Rule 60(b) is warranted only upon a
showing of extraordinary circumstances that create a substantial danger
that the underlying judgment was unjust.” Daniels v. Brennan, 887 F.2d 783,
790 (7th Cir. 1989) (citations omitted). The grounds for Rule 60(b) relief are:
1) mistake, inadvertence, surprise, or excusable neglect;
2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to
move for a new trial under Rule 59(b);
3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing
party;
4) the judgment is void;
5) the judgment has been satisfied, released, or
discharged; it is based on an earlier judgment that has
been reversed or vacated; or applying it prospectively
is no longer equitable; or
6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). Recently, the U.S. Supreme Court held that in addition
to mistakes of fact, legal errors may be “mistakes” for purposes of Rule
60(b)(1), Kemp v. United States, 142 S.Ct. 1856, 1865 (2022). Consequently, the
Court analyzes Petitioner’s motion under Rule 60(b).2 The Rule 60(b)
subsections “are not overlapping,” meaning that the Court must analyze
each argument Petitioner raises under only one subsection; here, the Court
determines that the first is the most appropriate as to all of Petitioner’s
arguments. Mendez v. Republic Bank, 725 F.3d 651, 658 (7th Cir. 2013).
A Rule 60(b) motion that attacks “not the substance of the federal court’s
resolution of a claim on the merits, but some defect in the integrity of the federal
habeas proceedings” need not be construed as a second or successive habeas
petition. Gonzalez v. Crosby, 545 U.S. 524, 632 (2005).
2
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3.
ANALYSIS
3.1
Petitioner’s Denial of Self-Representation Claim
Petitioner argues that the Court “mistakenly overlooked” his claim
that he was denied his right to represent himself, and that de novo review
is required because the state courts rejected the claim as res judicata. ECF
No. 54 at 2 (citing, e.g., Warren v. Baenen, 712 F.3d 1090, 1098, 1105 – 06 (7th
Cir. 2013)).
In its underlying order, the Court explained that “Petitioner raised
denial of his right to self-representation in his first pro se postconviction
motion” under Wis. Stat. § 974.06. ECF No. 50 at 11. The Court continued,
observing that, “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.” (citing State v. Escalona-Naranjo, 517 N.W.2d 157 (Wis.
1994); State v. Romero-Georgana, 849 N.W.2d 668 (Wis. 2014)). “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.’” Id. (quoting
Romero-Georgana, 849 N.W.2d at 672). Where a petitioner alleges that the
“sufficient reason” is ineffective assistance of postconviction counsel,
“[s]uch 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. (quoting Romero-Georgana, 849 N.W.2d at
679). The Seventh Circuit is clear that both Escalona and Romero constitute
adequate and independent state law grounds that bar federal habeas
review. Id. (citing Perry v. McCaughtry, 308 F.3d 682, 690 (7th Cir. 2002)); see
also Whyte v. Winkleski, 34 F.4th 617, 625 (7th Cir. 2022).
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The adequate and independent state law ground doctrine cautions
that “[w]hen the last state court to issue an opinion on a petitioner’s federal
claim has resolved that claim on an adequate and independent state
ground, federal habeas review of the claim is foreclosed.” Miranda v.
Leibach, 394 F.3d 984, 991 (7th Cir. 2005). “The doctrine applies regardless of
whether the state law ground is substantive or procedural.” Richardson v.
Lemke, 745 F.3d 258, 268 (7th Cir. 2014). Where the doctrine applies, “[a]ny
such ruling on the federal claims would be advisory, given the fact that on
remand the state court would still deny petitioner relief on the independent
and adequate state law ground.” Woods v. Schwartz, 589 F.3d 369, 373 (7th
Cir. 2009) (citing Coleman, 501 U.S. at 729 (“Because this Court has no power
to review a state law determination that is sufficient to support the
judgment, resolution of any independent federal ground for the decision
could not affect the judgment and would therefore be advisory.”)).
The Court has revisited the Wisconsin Court of Appeals’ decision on
Petitioner’s first pro se postconviction motion, and confirmed that the
Wisconsin Court of Appeals denied the claim on the grounds that it was
not “clearly stronger than issues actually raised by postconviction counsel.”
ECF No. 39-18 at 4–7. Thus, as the Court held in its underlying order, the
claim is unavailable for federal habeas review under the adequate and
independent state law ground doctrine.
Petitioner argues throughout his motion that de novo review should
be applied where the state courts denied a claim as “res judicata.” First, as
explained, Petitioner conflates the adequate and independent state law
ground doctrine (in which Escalona and Romero fit) with res judicata. Where
the state court denies a claim brought for the first time on a Wis. Stat. §
974.06 motion (and a prior Wis. Stat. § 974.02 motion had been filed)
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because the petitioner failed to show sufficient reason to avoid procedural
default, or where ineffective assistance of postconviction counsel is raised
to excuse the default and such claims are not “clearly stronger” than claims
brought in the previous § 974.02 motion, such denial is an independent and
adequate state law ground, not res judicata. The cases Petitioner cites stand
for the proposition that de novo review is appropriate where a state court
bypasses an issue because, for example, it “erroneously believed that the
issue had been addressed on direct appeal.” Warren, 712 F.3d 1090, 1098
(7th Cir. 2013). That is not what happened here; the state court did not
bypass the pertinent issues, but analyzed them and determined they were
not clearly stronger than issues actually previously raised under Escalona
and Romero.
Petitioner argues in other areas throughout his motion that where
the Court determined in its underlying order that the state court “did not
apply federal law” to a claim, but still decided a claim on its merits, de novo
review is appropriate. ECF No. 54 at 2 (citing Harris v. Thompson, 698 F.3d
609, 623–25 (7th Cir. 2012)). Petitioner again conflates the Court’s language
as to the appropriate standards of review.
As explained, the independent and adequate state law ground
doctrine “applies regardless of whether the state law ground is substantive
or procedural.” Richardson, 745 F.3d at 268. “But given what a petition for
habeas corpus is, the substantive merit of a legal claim contained therein is
bound to be governed by federal law. Accordingly, when a state court relies
on an independent and adequate state law ground to resolve such a claim,
the state law ground is usually procedural.” Id.
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While “it is not always easy for a federal court to apply the
independent and adequate state ground doctrine,” courts will presume that
there is no independent and adequate state law ground when a state court’s
adjudication of a federal claim “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.” Coleman v. Thompson, 501 U.S. 722, 735 (1992) (citations
omitted). It follows that, to apply the doctrine, “[t]he state court must have
actually relied on that rule—and not on a parallel or interwoven federal
basis—in order to foreclose our review.” Richardson, 745 F.3d at 269 (“We
do not construe genuine ambiguity in favor of the state; if it ‘fairly appears’
that the state court rested its decision primarily on federal law or is
interwoven therewith, a federal court may review the federal question
unless the state court’s opinion contains a ‘plain statement’ that its decision
rests on state grounds.”) (citations omitted).
In its underlying order, the Court determined that certain
applications of state law by the Wisconsin Court of Appeals, such as
regarding due process (ECF No. 50 at 12) and sufficiency of the evidence
(id. at 19) were sufficiently interwoven with federal law such that review as
not precluded under the independent and adequate state law ground
doctrine. See, e.g., Falconer v. Lane, 905 F.2d 1129, 1134 (7th Cir. 1990) (“[I]f a
defendant presents the state courts with a state claim that is functionally
identical to a federal claim, then we must regard the federal claim as fairly
presented.”). The fact that the state court addressed these claims on the
merits, but applied state law, does not support de novo review. Not only
were the pertinent claims here interwoven with federal law, but Harris has
been explicitly called into question in light of the U.S. Supreme Court’s
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decision in Johnson v. Williams, 568 U.S. 289 (2013). Lee v. Avila, 861 F.3d 565,
571 n.1 (7th Cir. 2017) (quoting Williams, 568 U.S. at 300) (“[I]t is by no
means uncommon for a state court to fail to address separately a federal
claim that the court has not simply overlooked.”). As explained in Warren,
de novo review is appropriate where the state court clearly bypassed a
claim (which does not include deciding a claim under Escalona or Romero).
That is not the case as to any of Petitioner’s claims here.
3.2
Petitioner’s Jury Instruction Due Process Claim
Petitioner argues that the Court overlooked his claim that the state
trial court violated his due process rights by treating Wis. Stat. §§ 940.05
(second-degree intentional3 homicide) and 940.02 (first-degree reckless
homicide) disjunctively. ECF No. 54 at 4. The Court understood and
addressed this claim as part of Ground One, see ECF No. 50 at 7, but
Petitioner raises it in his 60(b) motion in connection with the Court’s
analysis of Ground Two, ECF No. 54 at 5. Petitioner also contends that,
when the Court parenthetically noted that he relied upon an overruled case
and outdated statutory code, the Court overlooked cases relied upon by the
overruled case that are still good law, as well as commentary from the
Wisconsin Supreme Court that its holding was not affected by the change
in the statutory code. Id.
The Court’s underlying order contains a typographical error referring to
Wis. Stat. § 940.05 as covering second-degree reckless homicide. ECF No. 50 at 6.
Section 940.05 covers second-degree intentional homicide. The typographical error
was in the portion of the Court’s order summarizing how the circuit court
characterized Petitioner’s claims. Section 940.05 was correctly written as covering
second-degree intentional homicide in the portion of the Court’s order
summarizing Petitioner’s claims before this Court in the instant Section 2254
petition. ECF No. 50 at 7. Petitioner was convicted of first-degree reckless homicide
(Wis. Stat. § 940.02). ECF No. 30-9 at 3.
3
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In its underlying order, the Court noted that Petitioner’s reliance on
State v. Harp, 443 N.W.2d 38 (Wis. Ct. App. 1989) was misplaced, as Harp
was overruled by State v. Camacho, 501 N.W.2d 380 (Wis. 1993). ECF No. 50
at 20. The Court stands by that conclusion. Compare Harp, 443 N.W.2d at 882
(“The instruction did not completely and correctly state the law, since
nothing in the second-degree murder instruction informed the jury that
defendant must not be convicted of second-degree murder if, due to his
unreasonable belief or amount of force used, the self-defense privilege did
not apply.”), with Camacho, 501 N.W.2d at 390 (“We now make clear that the
crime of attempted imperfect self-defense manslaughter does contain an
objective threshold element requiring that the defendant reasonably believe
that he is preventing or terminating an unlawful interference. The court of
appeals’ decision was based on a prior decision by the court of appeals in
State v. Harp []. To the extent that it contradicts our holding today, we
hereby overrule the court of appeals’ decision in Harp.”). The Camacho court
further explained that “the instructions given by the circuit court . . .
accurately stated the law pertaining to the crime of imperfect self-defense
manslaughter. The circuit court instructed the jury to find Camacho guilty
of first-degree murder if ‘the belief by the defendant that he was entitled to
use self-defense was unreasonable.’” Id. at 389.
As to both perfect self-defense (i.e., where the belief and the force
used are reasonable) and imperfect self-defense (i.e., where the belief is
reasonable, but the force used is unreasonable), the Wisconsin pattern jury
instructions explain that:
The effect of the privilege of self-defense in a case where first degree
intentional homicide is charged is as follows:
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(a) if the exercise of the privilege was reasonable, both in
inception and scope, the defendant is not guilty of any
crime;
(b) if the defendant actually believed it was necessary to use
force in self defense, but acts unreasonably, the defendant is
guilty of second degree intentional homicide. He or she may
act unreasonably in either of two ways:
i) the belief that it was necessary to act in self-defense
may be unreasonable; or
ii) the amount of force used may be unreasonable
(c) if the defendant did not actually believe it was necessary
to use force in self defense, the defendant is guilty of first
degree intentional homicide.
Wis. J-Crim. 1016. This is precisely how the trial court instructed the jury as
to these offenses. ECF No. 30-35 at 117 (“The defendant is guilty of seconddegree intentional homicide if he caused the death of Joseph McGowan
with the intent to kill and actually believed the force used was necessary to
prevent the imminent death of -- or great bodily harm to himself, but if the
belief or amount of force used was unreasonable, the defendant is guilty of
first-degree intentional homicide if the defendant caused the death of
Joseph McGowan with the intent to kill and did not actually believe the
force used was necessary to prevent imminent death or great bodily harm
to himself.”).
As the Court noted in its underlying order, also in line with the
pattern jury instructions, the trial court instructed the jury 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
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was necessary to prevent death or great bodily harm to himself,” ECF No.
35 at 115–16, and “The defendant is guilty of first-degree reckless homicide
if the defendant caused the death of Joseph McGowan by criminally
reckless conduct and the circumstances of the conduct showed utter
disregard for human life. You will be asked to consider the privilege of selfdefense in deciding whether the elements of first-degree reckless homicide
are present,” id. at 117–18. Both instructions are identical nearly word-forword to the Wisconsin pattern jury instructions. Wis. J-Crim. 1016.
Petitioner claims that the instructions, which he contends are
“disjunctive,” raise a federal due process claim in light of Bouie v. City of
Columbia, 347 U.S. 347, 356 (1964), which holds that a state court’s
construction of a criminal statute must be foreseeable. ECF No. 54 at 4. As
the Wisconsin Court of Appeals noted, the trial court here instructed the
jury using the pattern jury instructions. ECF No. 30-9 at 8. There is no due
process error.
Regardless, the Court need not have considered this claim on the
merits at all. When the Wisconsin Court of Appeals reviewed this precise
issue (“Patterson contends that the circuit court’s instructions . . . did not
instruct the jury that if Patterson actually believed that deadly force was
necessary, then he could not be convicted of first-degree reckless
homicide”), it noted that Petitioner did not object to the jury instructions at
trial, which prohibited review of the issue. ECF No. 30-9 at 8 (“The
Wisconsin Supreme Court has explained that Wis. Stat. § 805.13(3) prohibits
this court from reviewing unobjected-to jury instructions.”) (citing State v.
Schumacher, 424 N.W.2d 672 (1988)). As the Court explained in its
underlying order, “[t]his District has held that a state court’s decision to
abstain from considering an issue on the basis of Section 805.13(3)—
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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.”). ECF No. 50 at
15 – 16 (citing McCarville v. Baldwin, 828 F. Supp. 626, 629 (E.D. Wis. 1993)).
Thus, to the extent that Petitioner clarifies in his motion that this
claim is more properly part of Ground Two than Ground One, and thus
revolves around the jury instructions, the claim was not available for
federal habeas review, in any event.
3.3
Petitioner’s Duncan Denial of Jury Trial Claim
Petitioner cites Duncan v. Louisiana, 391 U.S. 145 (1968) for the
proposition that his alleged errors in the jury instructions denied him a jury
trial and a unanimous verdict, and contends that the Court overlooked this
distinct claim when it decided the instructional errors. ECF No. 54 at 6.
Duncan applies the right to a jury trial to the states. Duncan, 391 U.S. 145.
The Wisconsin Court of Appeals confronted this claim on Petitioner’s first
Wis. Stat. § 974.06 motion, explaining that Petitioner was not denied a trial
or the opportunity to present his defense because every less serious type of
criminal homicide is a lesser-included offense of first-degree intentional
homicide. ECF No. 30-18 at 6. The jury was instructed on first- and seconddegree intentional homicide as well as on first-degree reckless homicide.
ECF No. 30-35 at 115–18. The Court analyzed the “elements” test in its
underlying order, finding that it is not contrary to clearly established
federal law. ECF No. 29 at 14. The Court stands by that conclusion.
3.4
Petitioner’s Tumey Judicial Bias Claim
Petitioner contends that the Court overlooked his claim that the trial
court committed error by arbitrarily finding him indigent, and instead
focused only his due process claim as to the appointment of counsel issue.
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ECF No. 54 at 7. Petitioner explains that he previously filed a motion for
reconsideration of the Court’s screening order to ensure this claim was
before the Court. Id. (citing ECF No. 33). Petitioner maintains these claims
are distinct. At bottom, however, Petitioner’s judicial bias/indigency claim
is a due process claim, which the Court addressed in its underlying order.
ECF No. 50 at 12.
Petitioner raised the judicial bias claim as to indigency in his second
Wis. Stat. § 974.06 motion. The Wisconsin Court of Appeals analyzed the
claim, explaining that, “[t]he right to an impartial judge is a fundamental to
our notion of due process.” ECF No. 30-25 at 3 (quoting State v. Goodson, 771
N.W.2d 385 389 (Wis. Ct. App. 2009)). The Wisconsin Court of Appeals also
thoroughly analyzed the sequence of events leading to the appointment of
Petitioner’s trial counsel. The Court reviewed these events in its underlying
order and found no due process violation. ECF No. 20 at 13.
Specifically in support of his indigency/judicial bias claim, Petitioner
cites Tumey v. State of Ohio, 273 U.S. 510, 514 (1927), which holds that an
accused is deprived due process of law when a judge has a “pecuniary and
other interest . . . in the result of the trial.” The Wisconsin Court of Appeals
determined that “[t]here was nothing about [the appointment of counsel]
process that suggests the circuit court acted in a biased manner or with an
appearance of bias . . . . To the contrary, the circuit court went to great
lengths to accommodate Patterson.” ECF No. 30-5 at 3. This holding was
neither contrary to clearly established federal law, nor was it an
unreasonable determination of the facts. The sequence of events laid out in
the record, as well as in the Court’s underlying order, ECF No. 50 at 13,
supports the Wisconsin Court of Appeals’ conclusion that the trial court
went to great lengths to ensure Patterson would be heard. Tumey is
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inapposite; there is no indication the trial court had any pecuniary or other
interest in Petitioner’s trial.
3.5
Petitioner’s Martin-Linen Claim
Petitioner alleges that the Court overlooked a claim under United
States v. Martin Linen Supply Co., 430 U.S. 564 (1977). ECF No. 54 at 9. Martin
Linen holds that the Double Jeopardy clause bars appellate review and
retrial following a judgment of acquittal. Martin Linen, 430 U.S. at 564.
Martin Linen is not an easy fit because Petitioner’s claim is, in substance, a
sufficiency of the evidence claim. ECF No. 41-2 at 37 (discussing alleged
Martin Linen claim: “Patterson’s acquittal on § 940.05 . . . proves that the
evidence is insufficient on all charges since § 940.05 includes § 940.02”). The
Court examined the Wisconsin Court of Appeals’ holding as to this claim
when it was raised on Petitioner’s Wis. Stat. § 974.02 motion, which holding
rested on sufficiency of the evidence. ECF No. 50 at 19 (citing ECF No. 30-9
at 5).
Petitioner again raised this claim in his first Wis. Stat. § 974.06
motion. ECF No. 30-18 at 4 (explaining Petitioner’s claim as one that he “is
innocent and must be acquitted of reckless homicide because there was
insufficient evidence to convict him and because there was an ‘acquittal’ on
second-degree intentional homicide”). The Wisconsin Court of Appeals
again examined the claim as one of sufficiency of the evidence:
Sufficiency of the evidence was previously litigated in
Patterson I. See id., No. 2013AP749-CR, ¶¶10-14. There, we
explained how the jury could acquit on first degree
intentional homicide—by rejecting the notion that Patterson
intended to kill McGowan— while convicting Patterson of the
reckless homicide by concluding that his conduct was
criminally reckless. See id., ¶¶13-14. Like first-degree
intentional homicide, second-degree intentional homicide has
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an intent element, see WIS. Stat. § 940.05(1), so an “acquittal”
on that offense also does not necessitate acquittal on the
reckless homicide.
The Court explained in its underlying order that the Wisconsin Court of
Appeals’ holdings do not run contrary to clearly established federal law.
ECF No. 50 at 19. Martin Linen does not provide authority to the contrary,
and the Court will not issue a decision on the matter of the elements of a
state criminal charge (which would be advisory) when those elements do
not run contrary to clearly established federal law, or otherwise violate the
Constitution, laws, or treaties of the United States (which analysis the Court
also took up in its underlying order). ECF No. 50 at 10, 19; see also Jackson v.
Virginia, 443 U.S. 307, 324 n.16 (1979); Wagner v. Mcdermott, No. 16-CV-106PP, 2020 WL 6136123, at *4 (E.D. Wis. Oct. 19, 2020).
3.6
Petitioner’s Jackson-Fiore Claim, Self-Defense Instructional
Claim, and Falconer Claim
Petitioner claims that the Court resolved his claim under Jackson, 443
U.S. at 307 (which holds that a federal habeas court must consider “whether
there was sufficient evidence to justify a rational trier of fact to find guilt
beyond a reasonable doubt”), but that such claim was only a subsidiary of
his “Jackson/Fiore” claim, which also invokes Fiore v. White, 531 U.S. 225
(2001). ECF No. 54 at 9. Fiore holds that the Due Process Clause forbids
conviction of a crime without proving the elements of that crime beyond a
reasonable doubt. Fiore, 531 U.S. at 229. Petitioner argues that his JacksonFiore claim involves the State’s failure to negate self-defense beyond a
reasonable doubt. ECF No. 54 at 11. Petitioner appears to understand this
claim as a sufficiency of the evidence claim, id. at 11, as did the state courts,
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ECF Nos. 30-9 at 5, 30-18 at 3–5. Petitioner also raises this claim as an
instructional claim, ECF No. 54 at 13, which the Court takes up below.
As noted, the Court analyzed sufficiency of the evidence in its
underlying order, and found that the Wisconsin Court of Appeals’ analyses
were not contrary to federal law. ECF No. 50 at 19. The Court looked
beyond the jury instructions to the record to determine whether that
evidence could “reasonably support a finding of guilt beyond a reasonable
doubt,” and concluded that it did. Jackson, 443 U.S. at 318; ECF No. 50 at 20.
Petitioner apparently takes issue with the fact that the Wisconsin Court of
Appeals conducted the same sufficiency of the evidence analysis as to
multiple claims that he maintains are distinct, but this does not in any way
suggest the claims were not considered. Lee, 861 F.3d at 571 n.1. The Court
agrees that the claims were all properly adjudicated on the sufficiency of
the evidence analysis, and does not find constitutional error as to that
analysis; in other words, the evidence reasonably supports the jury’s
verdict of first-degree reckless homicide beyond a reasonable doubt.
Petitioner also raises an error as to the jury instructions regarding
the State’s burden to negate self-defense beyond a reasonable doubt. ECF
No. 54 at 13. As the Court noted in its underlying order, and also explained
above in this Order, Petitioner did not object to the jury instructions, and
the Wisconsin Court of Appeals declined to consider the claims on that
basis. ECF No. 50 at 15. That is an adequate and independent state law
ground that precludes federal habeas review of the claims. Nonetheless, in
its underlying order, the Court briefly addressed the merits of the claims
due to the domino effect they had on the other claims before it. Id. at 16–18.
The Court maintains in this Order that it need not review this claim at all in
light of the independent and adequate state law doctrine.
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Petitioner refers the Court to Brown v. Eplett, 48 F.4th 543, 554 (7th.
Cir. 2022), which explains that, under Wisconsin law, self-defense becomes
a negative defense rather than an affirmative defense when there is a mens
rea of recklessness. In that regard, the Brown court explains, “because the
defense in such cases serves to negate one or more elements of the charged
crime, an error in describing the State’s burden of proof with respect to a
negative defense or in articulating the elements of the defense may well
implicate the defendant’s due process rights.” Id. (citing State v. Schulz, 307
N.W.2d 151, 156 (Wis. 1981) (if asserted defense challenges an element of
the charged crime, “the state bears the burden of proving this element
beyond a reasonable doubt” and in the face of negative defense, “the
burden of persuasion cannot be placed upon the defendant without
violating his right to due process of law”).
In its underlying order, the Court explained, citing Wisconsin
criminal jury instructions on first-degree intentional homicide, seconddegree intentional homicide, and first-degree reckless homicide, that “the
Wisconsin legislature has opted to place the burden on the State to disprove
self-defense beyond a reasonable doubt.” ECF No. 50 at 16 (citing Wis. JCrim. 1016). The Court examined the jury instructions with this burden of
proof allocation in mind and found no constitutional error. Id. at 18. Thus,
that negating self-defense becomes the state’s burden by way of being
called a “negative defense” versus an “affirmative defense” does not
change the Court’s underlying analysis.
Even so, the Court has revisited the jury instructions, with an eye
specifically towards the first-degree reckless homicide instruction, which
appears to be the instruction on which Petitioner focuses in his 60(b)
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motion. ECF No. 54 at 23. The trial court instructed the jury as to this charge
that
Before you may find the defendant guilty of first-degree
reckless homicide, the State must prove by evidence which
satisfies you beyond a reasonable doubt that the following
three elements were present . . . . two, that the defendant
caused the death by criminally reckless conduct.
“Criminally reckless conduct” means the conduct created a
risk of death or great bodily harm to another person and the
risk of death or great bodily harm was unreasonable and
substantial and the defendant was aware that his conduct
created the unreasonable and substantial risk of death or great
bodily harm. If the defendant was acting reasonably in the
exercise of the privilege of self-defense, his conduct did not
create an unreasonable risk to another.
And the third element is that the circumstances of the
defendant’s conduct showed utter disregard for human life.
In determining whether the conduct showed utter disregard
for human life, you should consider these factors: What the
defendant was doing, why the defendant was engaged in that
conduct, how dangerous the conduct was, how obvious the
danger was, whether the conduct showed any regard for []
life and all other facts and circumstances relating to the
conduct.
You should consider the evidence relating to self-defense in
deciding whether the defendant’s conduct showed utter
disregard for human life.
If you are satisfied beyond a reasonable doubt that the
defendant caused the death of Joseph McGowan by
criminally reckless conduct and that the circumstances of the
conduct showed utter disregard for human life, you should
find the defendant guilty of first-degree reckless homicide. [ .
..]
The burden of establishing every fact necessary to constitute
guilt is upon the State.
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ECF No. 30-35 at 126–30. The trial court specifically read these instructions
to ensure that the jury considered “whether or not the State has met its
burden of proof with regard to self-defense.” Id. at 94. As it held in its
underlying order, the Court finds no due process error with the
instructions.
For the same reasons explained here, and above in Section 3.1, the
Court does not find any mistake in the analysis it conducted as to
Petitioner’s claim under Falconer, 905 F.2d 1129, which Petitioner raises
again in his 60(b) motion. ECF No. 50 at 18; ECF No. 54 at 15. As with other
claims regarding the jury instructions, this claim was denied by the state
courts on independent and adequate state law procedural grounds. Even if
it were not, the errors in Falconer—where the court found due process error
where a voluntary manslaughter charge was read to the jury, but the jury
was not instructed as to the mitigating states of mind listed in the Illinois
statute—are not present as to the instructions and Wisconsin statutes here.
3.7
Deprivation of Counsel Claims and Ineffective Assistance
of Trial and Post-Conviction Counsel Claims
Petitioner requests relief from judgment on his ineffective assistance
of trial and post-conviction claims.4 As the Court explained in its
underlying order, these claims were procedurally defaulted, as the
Wisconsin Court of Appeals affirmed denial of the claims on Petitioner’s
Petitioner also requests relief from judgment on his claim that he was
constructively denied counsel when the trial court instructed on Wis. Stat. § 940.02
(first-degree reckless homicide) at the close of evidence. The Court explained in its
underlying order that because the offense was a lesser offense of the offense he
was charged with, he had sufficient notice and opportunity to present a defense.
ECF No. 50 at 13–14. To the extent Petitioner now presents the claim as one of
ineffective assistance of counsel, the claim is procedurally defaulted, for the
reasons explained in this Order and the Court’s underlying order.
4
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Wis. Stat. § 974.06 motion on independent and adequate state law grounds,
i.e., Escalona and Romero. See ECF No. 50 at 21–22 (explaining that the
ineffective assistance of trial counsel claims were procedurally defaulted by
the state court’s application of Escalona and that the ineffective assistance of
post-conviction counsel claims were procedurally defaulted by the state
court’s application of Romero, as they did not satisfy the pleading threshold
necessary to excuse the Escalona bar); see supra p. 4.
The Court excused the default. ECF No. 50 at 22 (citing Martinez v.
Ryan, 566 U.S. 1, 11 (2012)). However, recent Seventh Circuit case law has
made clear that Martinez does not apply in Wisconsin and, more specifically
(and importantly) as to Petitioner’s procedural posture, does not apply at
the Wis. Stat. § 974.06 stage, where a Wis. Stat. § 974.02 motion was also
filed. Whyte, 34 F.4th at 622 (2022 Seventh Circuit decision holding that
ineffective assistance claims raised in Wis. Stat. § 974.06 motion and denied
based on Escalona or Romero are procedurally defaulted).5 Thus, the Court
need not have excused the default on this basis.
Petitioner did not argue cause and prejudice to excuse the default in
his initial brief, nor does he do so in his 60(b) motion. This is because he
contends that the claims should be reviewed de novo, see, e.g., ECF No. 412 at 94, or that the state court’s application of Escalona was a “merits
review,” see, e.g., ECF No. 54 at 26. The Court addressed Petitioner’s
standard of review arguments earlier in this Order. See supra p. 5.
Nash v. Hepp, 740 F.3d 1075, 1079 (7th Cir. 2014) (Martinez-Trevino does not
apply in Wisconsin because “Wisconsin law expressly allows—indeed in most
cases requires—defendants to raise claims of ineffective assistance of trial counsel
as part of a consolidated and counseled direct appeal, and provides an opportunity
to develop an expanded record”).
5
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Even if Petitioner did argue cause and prejudice, the Court
addressed the merits of the claims in its underlying Order and did not find
a violation of Strickland v. Washington, 466 U.S. 668 (1984). ECF No. 50 at 22–
26. The Court will make one correction that, as to the argument regarding
other-act evidence, the record shows that the jury heard testimony that
Petitioner had previously witnessed McGowan shoot (not kill) a man, see
ECF No. 41-5 at 14–16, but did not hear testimony that McGowan had
previously killed two men, as the trial court determined that the latter
incidents were remote and vague. ECF No. 41-5 at 10–12.
This correction does not change the Court’s conclusion that
testimony regarding additional other-act incidents would not result in a
reasonable probability of a different outcome, under the second prong of
Strickland. ECF No. 50 at 26. Both of the incidents Petitioner challenges
involved overheard testimony from 13 years and 7 years, respectively, prior
to Petitioner’s initial charge in this case. Id. at 10 (1997 incident “involv[ing]
a shooting of a gun by the victim, according to what the victim told the
defendant days later”); id. at 11 (2003 incident involving “shooting up of the
car that the victim told others he did”). Notably, in addition to hearing
testimony from Petitioner regarding a shooting by McGowan that
Petitioner himself witnessed in September 2009, ECF No. 41-5 at 16, the trial
court also permitted testimony as to a January 2010 incident where
McGowan threatened and fought with Petitioner, which incident led
Petitioner to purchase a firearm, ECF No. 41-5 at 6–7. In addition to this
evidence, the jury heard testimony from Petitioner himself as to his state of
mind leading up to the shooting and during the shooting. ECF No. 30-9 at
2–3, which the Court addressed in its underlying order. ECF No. 50 at 4.
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Moreover, under the first prong of Strickland, Petitioner’s trial
counsel did not perform below objective standards for reasonably effective
representation. The governing law for the trial court was McMorris v. State,
205 N.W.2d 559, 563 (Wis. 1973), which places the admission of such otheract evidence “in the exercise of sound and reasonable discretion by the trial
court.” A state court’s reasonable exercise of discretion as to admitting
McMorris evidence “does not run afoul of either state or federal rules of
evidence, much less his federal constitutional right to present a defense.”
Neevel v. Herns, 15-CV-588-WMC, 2018 WL 6441071, at *5 (W.D. Wis. Dec.
7, 2018). Petitioner’s trial counsel argued for all of the other-act evidence to
come in, ECF No. 41-5 at 4, knowing they faced a discretionary standard.
Other than making this factual correction, the Court will not readdress the merits of any other ineffective assistance of counsel claim,
which analyses are laid out in its underlying order. As explained, absent
Petitioner arguing cause and prejudice, which he did not, the Court need
not even have reached the merits given the state court’s denial of these
claims on independent and adequate state law grounds.
4.
CONCLUSION
For the reasons stated above, the Court does not find mistake
representing an “extraordinary circumstance” that creates a “substantial
danger that the underlying judgment was unjust” warranting Rule 60(b)
relief. Daniels, 887 F.2d at 790. Petitioner’s motion for relief from judgment,
ECF No. 54, will consequently be denied. The Court stands by its decision
in its underlying order, ECF No. 50 at 27, to deny Petitioner a certificate of
appealability.
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Accordingly,
IT IS ORDERED that Petitioner Brian A. Patterson’s motion for
relief from judgment, ECF No. 54, be and the same is hereby DENIED.
Dated at Milwaukee, Wisconsin, this 19th day of December, 2022.
BY THE COURT:
____________________________________
J. P. Stadtmueller
U.S. District Judge
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