Kahill v. Boughton
Filing
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DECISION AND ORDER signed by Magistrate Judge Nancy Joseph. IT IS ORDERED that Kahill's 1 petition for a writ of habeas corpus be and hereby is DENIED. IT IS FURTHER ORDERED that this action be and hereby is DISMISSED. IT IS ALSO ORDERED that a certificate of appealability shall not issue. FINALLY, IT IS ORDERED that the Clerk of Court enter judgment accordingly. (cc: all counsel, via US mail to Petitioner)(blr)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CECIL T. KAHILL,
Petitioner,
v.
Case No. 17-CV-116
GARY BOUGHTON,
Respondent.
DECISION AND ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS
Cecil T. Kahill, a prisoner in Wisconsin custody, seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Kahill alleges that his conviction for first-degree reckless
injury by use of a dangerous weapon as an act of domestic abuse is unconstitutional. For the
reasons stated below, the petition for writ of habeas corpus will be denied and the case
dismissed.
BACKGROUND
Kahill was charged with attempted first-degree intentional homicide, first-degree
reckless injury, and endangering safety, all by use of a dangerous weapon and as acts of
domestic abuse, and one count of misdemeanor theft. (State v. Kahill, 2015AP963 (Wis. Ct.
App. July 21, 2016), Answer, Docket # 13-1 at 3–4.) Pursuant to a plea agreement, Kahill
pled guilty to one count of first-degree reckless injury by use of a dangerous weapon as an
act of domestic abuse. (Id. at 4.)
The facts as alleged by the State are as follows. Kahill had a history of domestic
violence against his girlfriend R.R. (Id. at 3.) In 2012, R.R. began an online relationship
with “James” after ending her relationship with Kahill, and she agreed to meet “James.”
(Id.) The Court of Appeals summarized the events of January 2, 2013 as follows:
When she entered the lobby of her apartment complex, she encountered
Kahill, who had been pretending to be “James.” They talked, and Kahill
indicated he was afraid R.R. would disclose his ongoing unauthorized use of
her mother's credit card. When R.R. attempted to walk away, Kahill seized
her from behind, threatened to kill her and her family, and stabbed her
repeatedly, breaking two knives in the process. Kahill next produced a gun
and dragged R.R. at gunpoint to the basement of the apartment complex
where he hid the broken knives. Kahill then moved R.R. outside. When
police arrived, Kahill told them he did not know R.R. and that a “white guy”
had stabbed her, but, after she was in the ambulance, she said Kahill was the
attacker. During a search of the scene, police found two knife handles and a
blade in the apartment complex basement and a loaded 40-caliber Glock
handgun in the bushes.
(Id.)
Kahill pled guilty to one count of first-degree reckless injury by use of a dangerous
weapon as an act of domestic abuse. The circuit court sentenced Kahill to thirty years of
imprisonment, consisting of twenty years of initial confinement and ten years of extended
supervision. (Id. at 1–2.)
After sentencing, Kahill moved to withdraw his plea, asserting that his trial counsel
was ineffective. (Id. at 2.) Specifically, Kahill alleged that his trial counsel failed to explain
to him that he had a defense to the charge of first-degree reckless injury. (Id. at 4.) According
to Kahill, his trial counsel failed to explain that certain after-the-fact actions he took,
including allowing R.R. to call 911, taking the phone himself to tell the dispatcher R.R. was
dying, and staying with her at the scene, constituted a defense to the charge of first-degree
reckless injury because the actions arguably showed he lacked one element of the crime:
utter disregard for human life. (Id. at 4–5.)
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At a Machner hearing, Kahill’s trial counsel testified that he discussed Kahill’s afterthe-fact actions with him, but he was not certain he discussed it with regard to the charge of
first-degree reckless injury specifically. (Hearing Tr. at 7–8, Docket # 22-1 at 23–24.) At the
time, he felt that Kahill’s post-injury conduct had to be weighed against the countervailing
evidence, including a trail of blood leading to the apartment building laundry room where
the knives were concealed. (Hearing Tr. at 18–24, Docket # 22-1 at 34–40.) He stated:
I thought I could make the argument [about post-injury conduct indicating
lack of utter disregard for human life] and there was a chance of being
successful at trial. The countervailing evidence was there were multiple stab
wounds to the neck, and the gun brought to the scene, the concealing of the
knives in the laundry room. Those were things that I thought were working
against us.
(Hearing Tr. at 21, Docket # 22-1 at 37.) He stated that the multiple stab wounds to the
neck might “inflame the emotions of the jury and they may not care about all the things he
did for her afterward. That’s the risk.” (Hearing Tr. at 23, Docket # 22-1 at 39.) He thought
it was unlikely that Kahill would be successful at trial. (Hearing Tr. at 24, Docket # 22-1 at
40.)
Trial counsel testified that he had negotiated a more favorable plea deal with the
prosecutor than the one she initially offered, ultimately reducing Kahill’s potential sentence
by at least twenty-five years of initial confinement and ten years of extended supervision.
(Hearing Tr. at 25, Docket # 22-1 at 41.) He testified that Kahill had made the decision to
take the plea deal, and he believed Kahill had done so because it was important to him to
reduce his potential sentence. (Hearing Tr. at 25–26, Docket # 22-1 at 41–42.) He testified
that he met with Kahill multiple times before the plea proceedings, generally for over an
hour, and that while he didn’t remember how long he spent going over the plea paperwork
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with Kahill, he generally takes between fifteen and thirty minutes to do so with a defendant.
(Hearing Tr. at 26–27, Docket # 22-1 at 42–43.) He also testified that he reviewed the
elements of first-degree reckless injury with Kahill in the context of doing the plea
questionnaire. (Hearing Tr., Docket # 22-1 at 23–25.)
Kahill testified that counsel never informed him that the after-the-fact actions would
present an arguable defense to the charge of first-degree reckless injury, or that the jury
would take them into consideration when assessing whether Kahill’s actions showed utter
disregard for human life. (Hearing Tr. at 34–35, Docket # 22-1 at 50–51.) Kahill also
testified that when he went through the plea questionnaire he did not see the jury
instructions, and his attorney did not read them to him. (Hearing Tr. at 36–37, Docket # 221 at 52–53.) He testified that when he had affirmed to the judge that he understood the plea
questionnaire, he had not known what jury instructions were or that they were part of the
plea questionnaire. (Hearing Tr. at 37–38, Docket # 22-1 at 53–54.) Kahill testified that at
the time he entered his plea, he did not understand that his after-the-fact actions were
relevant to whether he was guilty of first-degree reckless injury. (Hearing Tr. at 38, Docket #
22-1 at 54.) He testified that if he had understood that, he would have tried to negotiate a
different plea or gone to trial. (Hearing Tr. at 39, Docket # 22-1 at 55.)
The circuit court found credible trial counsel’s testimony that he had discussed the
elements of the offense and the relevance of Kahill’s actions after the injury with Kahill.
(Hearing Tr. at 65–76, Docket # 22-1 at 81–92.) The judge noted that after-the-fact actions
were not a “defense,” but rather, part of the totality of factors the jury would consider when
determining whether Kahill acted with utter disregard for human life. (Id.) He found
Kahill’s testimony that he would not have entered the guilty plea but for the alleged error to
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be not credible. (Id.) Thus, the circuit court denied the plea withdrawal request, and the
Wisconsin Court of Appeals affirmed. (Docket # 13-1.) The Wisconsin Supreme Court
denied Kahill’s petition for review on November 14, 2016. (Docket # 1-1 at 16.) Kahill
timely filed a petition for writ of habeas corpus in this court on January 25, 2017. (Docket #
1.)
STANDARD OF REVIEW
Kahill’s petition is governed by the Antiterrorism and Effective Death Penalty Act
(“AEDPA”). Under AEDPA, a writ of habeas corpus may be granted if the state court
decision on the merits of the petitioner’s claim (1) was “contrary to, or 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); or (2) “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)(2).
A state court’s decision is “contrary to . . . clearly established Federal law as
established by the United States Supreme Court” if it is “substantially different from
relevant [Supreme Court] precedent.” Washington v. Smith, 219 F.3d 620, 628 (7th Cir. 2000)
(quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)). The court of appeals for this circuit
recognized the narrow application of the “contrary to” clause:
[U]nder the “contrary to” clause of § 2254(d)(1), [a court] could grant a writ
of habeas corpus . . . where the state court applied a rule that contradicts the
governing law as expounded in Supreme Court cases or where the state court
confronts facts materially indistinguishable from a Supreme Court case and
nevertheless arrives at a different result.
Washington, 219 F.3d at 628. The court further explained that the “unreasonable application
of” clause was broader and “allows a federal habeas court to grant habeas relief whenever
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the state court ‘unreasonably applied [a clearly established] principle to the facts of the
prisoner’s case.’” Id. (quoting Williams, 529 U.S. at 413).
To be unreasonable, a state court ruling must be more than simply “erroneous” and
perhaps more than “clearly erroneous.” Hennon v. Cooper, 109 F.3d 330, 334 (7th Cir. 1997).
Under the “unreasonableness” standard, a state court’s decision will stand “if it is one of
several equally plausible outcomes.” Hall v. Washington, 106 F.3d 742, 748–49 (7th Cir.
1997). In Morgan v. Krenke, the court explained that:
Unreasonableness is judged by an objective standard, and under the
“unreasonable application” clause, “a federal habeas court may not issue the
writ simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law
erroneously or incorrectly. Rather, that application must also be
unreasonable.”
232 F.3d 562, 565–66 (7th Cir. 2000) (quoting Williams, 529 U.S. at 411), cert. denied, 532
U.S. 951 (2001). Accordingly, before a court may issue a writ of habeas corpus, it must
determine that the state court decision was both incorrect and unreasonable. Washington,
219 F.3d at 627.
ANALYSIS
Kahill argues that he is entitled to habeas relief because his plea was not knowingly
and voluntarily made due to ineffective assistance of counsel. Specifically, Kahill argues that
trial counsel failed to notify him of one of the elements of the crime of first-degree reckless
injury, namely that the act demonstrate utter disregard for human life, and that had he
known this, he would have pled differently because his actions after the fact—allowing R.R.
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to call 911, taking the phone himself to tell the dispatcher R.R. was dying, and staying with
her at the scene—showed regard for human life. 1 (Pet. Br., Docket # 21.)
To be entitled to federal habeas relief, Kahill must show that the court of appeals’
decision rejecting his claim that his plea was constitutionally defective was either contrary
to, or involved an unreasonable application of, clearly established federal law or was based
on an unreasonable determination of the facts in light of the evidence presented.
1. Voluntariness of Plea
A plea may be involuntary either because the accused does not understand the nature
of the constitutional protections that he is waiving, or because he has such an incomplete
understanding of the charge that his plea cannot stand as an intelligent admission of guilt.
Henderson v. Morgan, 426 U.S. 637, 645 n.13 (1976). “Without adequate notice of the nature
of the charge against him, or proof that he in fact understood the charge, the plea cannot be
voluntary in this latter sense.” Id. The Supreme Court has indicated that adequate notice of
the offense to which a defendant pleads can be satisfied either by “an explanation of the
charge by the trial judge or at least a representation by defense counsel that the nature of the
offense has been explained to the accused.” Id. at 647.
In assessing the voluntariness of Kahill’s plea, the court of appeals cited Wis. Stat. §
971.08 and State v. Bangert, 131 Wis.2d 246, 266–72, 389 N.W.2d 12 (1986) (holding that
trial court had duty to establish at plea hearing that accused understood nature of crime with
which he was charged and range of punishments which it carried). (Docket # 13-1 at 8.)
Wis. Stat. § 971.08(a) requires that before a court accepts a guilty plea, it must “[a]ddress the
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In his habeas petition, Kahill also lists as a ground for relief that his trial counsel had his license to practice law
suspended during part of the duration of his representation of Kahill. However, Kahill does not mention this ground
in any of his briefs, so I will deem it abandoned.
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defendant personally and determine that the plea is made voluntarily with understanding of
the nature of the charge and the potential punishment if convicted,” mirroring the standard
articulated by the Supreme Court. Thus, the state identified the appropriate standard. The
question remaining is whether it applied that standard unreasonably.
In addressing Kahill’s challenge to the voluntariness of his plea, the court of appeals
referred to the plea proceedings to support its conclusion that Kahill’s plea was knowingly
and voluntarily made. (Docket # 13-1 at 6–8.) The court noted that after the State described
the plea bargain, Kahill agreed that the State correctly described the terms of the agreement
and said that his plea did not result from any threats or promises. (Id. at 6.) Kahill confirmed
that he had reviewed the charging documents with his attorney. (Id.) The circuit court
explained to Kahill the maximum penalties he faced and told him that the court could
impose those penalties regardless of the terms of the plea bargain or any sentencing
recommendations, and Kahill said he understood. (Id. at 6–7.) Kahill signed a guilty plea
questionnaire and waiver of rights form and confirmed that he had reviewed it with his trial
counsel and that he understood its contents. (Id. at 7.) The form indicated that Kahill was
twenty-three years old, had a high school diploma, and had two years of post-secondary
education. (Id.) The circuit court explained to Kahill that he would be giving up the
constitutional rights listed on the form, and reviewed those rights with him. Kahill said he
understood his rights and had no questions about them. (Id.) Kahill told the court he had
reviewed and understood the addendum to the plea questionnaire, signed by both Kahill
and his attorney. (Id.) The form acknowledged that Kahill had read the complaint and that,
by pleading guilty, he would give up his rights to raise defenses, to challenge the validity of
his arrest, and to seek suppression of his statements and other evidence. (Id.) The plea
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questionnaire and addendum also included copies of the jury instructions describing the
elements of first-degree reckless injury while armed, which Kahill told the circuit court he
had discussed with his trial counsel and understood. (Id.) The circuit court conducted an
inquiry to ensure that Kahill had actually committed first-degree reckless injury while armed
as an act of domestic abuse. (Id.) Counsel stipulated to the facts in the complaint, and Kahill
admitted that they were true. (Id. at 8.) Based on these facts, the court of appeals’
determination that Kahill knowingly and voluntarily entered his plea was not an
unreasonable application of the relevant Supreme Court standard.
Furthermore, after the Machner hearing the trial court found that Kahill had not
lacked information, and that he fully understood the jury instructions and the elements of
the offense. (Hearing Tr. at 71, Docket # 22-1 at 87.) As the court of appeals noted, the trial
court is “the ultimate arbiter of the credibility of the witnesses and the weight to be given to
each witness’s testimony.” (Docket # 13-1 at 5–6.) The court of appeals may not “reweigh
the testimony of the witnesses to reach a conclusion regarding credibility contrary to that
reached by the circuit court.” (Id. at 6.) Under AEDPA, this court must also defer to the
state court’s findings of fact unless they are unreasonable.
In light of the plea colloquy and the facts found by the trial court, it was not
unreasonable for the court of appeals to conclude that Kahill’s plea was knowingly and
voluntarily made. Thus, Kahill is not entitled to habeas relief on this ground.
2. Ineffective Assistance of Counsel
The clearly established Supreme Court precedent for ineffective assistance of counsel
is set forth in Strickland v. Washington, 466 U.S. 668 (1984). To establish ineffective
assistance of counsel, Kahill must show both “that counsel’s performance was deficient”
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and “that the deficient performance prejudiced the defense.” Id. at 687. “Once a plea of
guilty has been entered, non-jurisdictional challenges to the constitutionality of the
conviction are waived and only the knowing and voluntary nature of the plea may be
attacked.” United States v. Brown, 870 F.2d 1354, 1358 (7th Cir. 1989). Thus, a guilty plea
generally closes the door to claims of constitutional error. There is an exception, however,
for instances where one’s plea is rendered involuntary due to the ineffective assistance of
counsel. Avila v. Richardson, 751 F.3d 534, 536 (7th Cir. 2014). A habeas petitioner “cannot
just assert that a constitutional violation preceded his decision to plead guilty or that his trial
counsel was ineffective for failing to raise the constitutional claim”; rather, he “must allege
that he entered the plea agreement based on advice of counsel that fell below constitutional
standards.” Hurlow v. United States, 726 F.3d 958, 966 (7th Cir. 2013).
In Hill v. Lockhart, 474 U.S. 52, 58–59 (1985), the Supreme Court stated that the
“prejudice” requirement “focuses on whether counsel’s constitutionally ineffective
performance affected the outcome of the plea process. In other words, to satisfy the
‘prejudice’ requirement, the defendant must show that there is a reasonable probability that,
but for counsel’s errors, he would not have pleaded guilty and would have insisted on going
to trial.” Id. at 59.
The court of appeals correctly cited the Strickland standard for ineffective assistance
of counsel. (Docket # 13-1 at 4.) Having identified the appropriate standard, the court of
appeals then determined that there was no deficiency in trial counsel’s performance. The
trial court found that counsel had discussed with Kahill the totality of the circumstances
around the stabbing, including Kahill’s actions after the fact, and that Kahill had understood
that a jury would consider the totality of the circumstances when assessing guilt, including
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Kahill’s actions after the fact. (Docket # 13-1 at 5.) Therefore, the court of appeals
concluded that counsel’s performance was not deficient. In light of the evidence presented,
and with proper deference to the trial court as the finder of fact, this was not contrary to, or
an unreasonable application of, Strickland.
The court of appeals cited to the Wisconsin case of State v. Bentley for the proposition
that in the context of a guilty plea, the defendant must demonstrate prejudice by showing
“‘a reasonable probability that, but for the counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.’” 201 Wis. 2d 303, 312, 548 N.W.2d 50
(1996) (citing Hill v. Lockhart, 474 U.S. 52 (1985)). This standard mirrors the Hill standard
for the prejudice prong. The court of appeals noted that the circuit judge had found Kahill’s
testimony that he would not have entered his guilty plea but for the error to be not credible.
(Docket # 13-1 at 5.) The circuit court concluded that Kahill had made a conscious,
calculated decision based on all the facts and that a more explicit statement about the jury’s
duty to consider the Kahill’s actions after the fact would not have caused [Kahill] not to
enter this plea on that date. (Id.) Deferring to these findings of fact, the court of appeals
concluded that there was no prejudice to Kahill from the alleged error by counsel. (Id.) This
was not unreasonable in light of the facts before it.
Because the court of appeals’ decision was not contrary to, or an unreasonable
application of, Strickland and Hill, Kahill is not entitled to habeas review based on the
ineffective assistance of counsel.
CONCLUSION
Kahill has not shown that the court of appeals’ conclusion contravenes federal law or
unreasonably determined the facts in light of the evidence. The court of appeals’ finding that
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trial counsel performed adequately and Kahill’s guilty plea was knowingly and voluntarily
made was not unreasonable. See Hall, 106 F.3d at 748–49 (“The statutory
‘unreasonableness’ standard allows the state court’s conclusion to stand if it is one of several
equally plausible outcomes.”). For these reasons, Kahill is not entitled to habeas relief.
CERTIFICATE OF APPEALABILITY
According to Rule 11(a) of the Rules Governing § 2254 Cases, the court must issue
or deny a certificate of appealability “when it enters a final order adverse to the applicant.”
A certificate of appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a
substantial showing of the denial of a constitutional right, the petitioner must demonstrate
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.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893, and n.4).
Jurists of reason would not find it debatable that Kahill is not entitled to habeas
relief. Thus, I will deny Kahill a certificate of appealability. Of course, Kahill retains the
right to seek a certificate of appealability from the Court of Appeals pursuant to Rule 22(b)
of the Federal Rules of Appellate Procedure.
ORDER
NOW, THEREFORE, IT IS ORDERED that Kahill’s petition for a writ of habeas
corpus (Docket # 1) be and hereby is DENIED.
IT IS FURTHER ORDERED that this action be and hereby is DISMISSED.
IT IS ALSO ORDERED that a certificate of appealability shall not issue.
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FINALLY, IT IS ORDERED that the Clerk of Court enter judgment accordingly.
Dated at Milwaukee, Wisconsin this 24th day of January, 2019.
BY THE COURT:
s/Nancy Joseph____________
NANCY JOSEPH
United States Magistrate Judge
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