Brito v. Malone

Filing 42

ORDER signed by Judge J P Stadtmueller on 11/30/2018: DENYING 7 Petitioner's Amended Petition for Writ of Habeas Corpus; DENYING Certificate of Appealability; and DISMISSING CASE with prejudice. (cc: all counsel, via mail to Gabriel Brito at Milwaukee Secure Detention Facility)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
GABRIEL BRITO,
Petitioner,
v.
RONALD MALONE,

Case No. 17-CV-135-JPS

ORDER

Respondent.
1.

INTRODUCTION
In June 2012, a jury in the Milwaukee County Circuit Court found

Petitioner guilty of two counts of second-degree sexual assault. See State of
Wisconsin v. Gabriel A. Brito, 2011-CF-44, Milwaukee County Circuit Court,
Court Record Events Report, available at: https://wcca.wicourts.gov.
Petitioner was sentenced to four years of imprisonment and five years of
supervised release. Id. He appealed on the ground that the trial court had
erroneously denied a motion to withdraw submitted by his counsel. That
appeal was denied. State of Wisconsin v. Brito, 871 N.W.2d 866, 2015 WL
5840711 (Wis. Ct. App. Oct. 8, 2015). Petitioner’s subsequent petition for
review to the Wisconsin Supreme Court was rejected on February 3, 2016.
(Docket #26-3). Petitioner filed the instant petition for a writ of habeas corpus
on January 30, 2017. (Docket #1). After a multitude of requests for
extensions, the petition is now, finally, fully briefed. For the reasons
explained below, it must be denied.
2.

BACKGROUND
Petitioner’s criminal case required two trials. The first, conducted in

December 2011, ended with a hung jury. The second, conducted in June

2012, resulted in Petitioner’s conviction. Prior to the trials, Petitioner had
been represented by two attorneys in succession, one appointed and one
retained. Both were replaced when Petitioner had disagreements with
them. Paul Bonneson (“Bonneson”), who served by appointment as
Petitioner’s third attorney, represented Petitioner at his first trial.
In January 2012, the prosecution announced that it would re-try
Petitioner. (Docket #26-7 at 2). Bonneson then made an oral motion to
withdraw his representation at Petitioner’s insistence. Id. at 6. The trial
court asked Petitioner why he wanted Bonneson to withdraw. Id. Petitioner
said “because we have a conflict of interest.” Id. When asked what that
conflict

was,

Petitioner

made

vague

statements

about

various

disagreements:
Certain aspects. He failed to bring out various
arguments on other strategic form during the trial that he
should use, and elements that he should have brought out
that would have been very helpful to my own testimony. He
just -- I don’t know that he can serve me adequately, have the
state of mind that we’re gonna have, which he expressed to
me again.
Id. The trial court then inquired of Bonneson as to his ability to work with
Petitioner. Id. at 6–7. Bonneson responded that it was not easy but that he
thought they could work together. Id. at 7. “[T]he problem,” Bonneson
explained, was that “every time . . . I say something that he doesn’t really
like, then he tells me to withdraw. And I keep going through this with him.”
Id.
Noting that Petitioner had already fired two previous attorneys, the
trial court denied the motion to withdraw. Id. It found that Petitioner would
likely have the same issues with any newly-appointed attorney. Id. at 8.

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Thus, it was better for Petitioner to stay with Bonneson, who was intimately
familiar with the case and had ably represented Petitioner in the December
2011 trial. Id. at 9–10. To the extent there was disharmony between
Petitioner and Bonneson, it stemmed from Bonneson’s duty to give honest
and sound advice on Petitioner’s desired strategic choices. Id. Petitioner
stated that he felt that Bonneson did not want to work with him, but the
trial court countered that Bonneson had just said the opposite. Id. at 10.
A final pretrial conference was held in March 2012. Bonneson stated
that he was ready for trial, but that Petitioner had renewed his request for
Bonneson to withdraw. (Docket #26-8 at 2). Petitioner further requested that
he be allowed to proceed pro se because “there’s some merits that Mr. Paul
Bonneson doesn’t want to raise[.]” Id. Petitioner later stated that he felt
there were “certain merits” that Bonneson “did not litigate properly”
during the last trial. Id. at 4. Petitioner requested standby counsel and
agreed to Bonneson taking that role. Id.
The trial court addressed the motion to withdraw first, finding that
there was no evidence of a complete breakdown of communication which
would necessitate the appointment of new counsel. Id. at 5. The trial court
reiterated that Bonneson had done an excellent job in the prior trial. Id.
Further, it was Bonneson’s job to make strategic choices, even when
Petitioner may have disagreed with them, because Bonneson’s training and
experience better equipped him to make those decisions. Id. at 5–6. The
motion to withdraw was therefore denied. Id. at 6.
The trial court then turned to Petitioner’s motion to proceed pro se.
Id. at 6–7. It conducted a thorough colloquy with Petitioner on his
education, legal knowledge, and understanding of the rules of procedure.
Id. at 7–9. The trial court also described the punishments Petitioner faced if
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he was convicted. Id. at 9. Petitioner confirmed that he wanted to represent
himself and that he had no conditions that would interfere with his ability
to do so. Id. at 9–10. Petitioner stated that he chose self-representation
because “I feel there’s no other way to be adequately represented.” Id. at 11.
The trial court found Petitioner competent and his waiver of representation
was free and voluntary. Id. at 11–12. Bonneson was kept on as standby
counsel. Id. at 12.
After losing at trial, Petitioner filed a postconviction motion alleging
that the trial court should have granted the motions to withdraw and
appointed him new counsel and should not have found that his waiver of
representation was voluntary. The motion was denied at the circuit court
level. (Docket #26-4 at 36–37). Petitioner appealed on the grounds that the
trial court erroneously denied the motions to withdraw and failed to make
an adequate inquiry into the circumstances of those motions. Id. at 5–6. He
tacitly abandoned the issue of whether he voluntarily chose selfrepresentation.
The Wisconsin Court of Appeals upheld the denial of the motions to
withdraw. It explained:
On appeal, Brito argues that the circuit court
erroneously exercised its discretion in denying the two
motions, and that the court failed to make a sufficient inquiry
into the bases for the motions. We address the last argument
first, because if we agree that the court’s inquiry was
insufficient, we would not review the substance of its
decisions on the motions.
The parties agree that the circuit court must make a
“meaningful inquiry” into the reasons for the defendant's
motion. See State v. Lomax, 146 Wis.2d 356, 362, 432 N.W.2d 89
(1988). Brito argues that the court’s inquiries here were too
sparse to qualify as meaningful. We disagree. For both
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motions, the court asked Brito himself why he wanted to
replace current counsel, and each time Brito described his
disagreement with certain tactical or legal decisions that
counsel had made. Brito argues that the court should have
made a detailed inquiry into all of the various specific
disagreements that Brito had with counsel in earlier
proceedings, but we do not read the case law to require such
a detailed inquiry.
Brito also argues that the court erroneously exercised
its discretion in denying the motions to replace counsel. We
review decisions on such motions for erroneous exercise of
discretion. State v. Jones, 2010 WI 72, ¶ 23, 326 Wis.2d 380, 797
N.W.2d 378. Brito argues that the circuit court should have
granted his motions because the situation met one of the
applicable factors, namely, that the alleged conflict with
counsel “was so great that it likely resulted in a total lack of
communication that prevented an adequate defense and
frustrated a fair presentation of the case.” See Lomax, 146
Wis.2d at 359, 432 N.W.2d 89.
As written, this test is phrased in the past tense (“likely
resulted”). The test is apparently meant for use by a circuit
court in considering a postconviction motion or by an
appellate court reviewing a case in which the defendant’s
motion was denied, and the defendant then went to trial
represented by the unwanted attorney, giving the reviewing
court a chance to consider the actual conduct of the trial
counsel and the interaction between unwanted counsel and
defendant. Here, however, Brito discharged the attorney and
represented himself. Accordingly, in this situation we see this
factor as a prospective one, meaning that we will look at
whether the record at the time of the circuit court’s decision
to deny the motion showed that the conflict between Brito and
counsel was so great that it was likely to result in a total lack
of communication that would prevent an adequate defense
and frustrate a fair presentation in the second trial. Viewed
from this perspective, Brito has not persuaded us that the
court erroneously exercised its discretion.

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Brito’s argument is based mainly on the difficulties
between Brito and trial counsel up to the time of the motions,
including during the first trial. Assuming without deciding
that Brito is correct that his earlier communication with
counsel was not easy or without conflict, he has not shown
that the circuit court was presented with a showing of a past
“total lack” of communication, or that the history and
information before the court pointed toward an inadequate
defense going forward. Beyond the history of some
difficulties in communication, Brito does not appear to point
to anything new that had happened at the time of his two
motions in early 2012 that should have caused the court to
expect that communication at the second trial would be worse
than at the first.
Brito, 2015 WL 5840711, at *1–2.
In this federal habeas action, Petitioner initially asserted four
grounds for relief. (Docket #7 at 7–11). The Court dismissed three of the
grounds because they were not presented to the state court. (Docket #12 at
3–4; Docket #22 at 2). The sole surviving ground is whether the trial court
violated Petitioner’s right to the effective assistance of counsel by denying
the motions to withdraw. (Docket #7 at 7–8).
3.

LEGAL STANDARD
State criminal convictions are generally considered final. Review

may be had in federal court only on limited grounds. To obtain habeas relief
from a state conviction, 28 U.S.C. § 2254(d)(1) (as amended by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”)) requires the
petitioner to show that the state court’s decision on the merits of his
constitutional claim was contrary to, or involved an unreasonable
application of, clearly established federal law as determined by the United
States Supreme Court. 28 U.S.C. § 2254(d)(1); Brown v. Payton, 544 U.S. 133,
141 (2005). The burden of proof rests with the petitioner. Cullen v. Pinholster,
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563 U.S. 170, 181 (2011). 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’ October 8, 2015 opinion, and not
any decision of the trial court itself.
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, 544 U.S. at 141. 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
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
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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
Preliminarily, the Court notes that the propriety of Petitioner’s claim

in this court is shaky at best. “Federal habeas relief is only available to a
person in custody in violation of the United States Constitution or laws or
treaties of the United States, see 28 U.S.C. § 2254(a), and is unavailable to
remedy errors of state law.” Dellinger v. Bowen, 301 F.3d 758, 764 (7th Cir.
2002). Petitioner did not cite federal law as a basis for his appeal. (Docket
#26-4 and #26-6). Instead, he relied upon Wisconsin case law on the
assessment of a motion to withdraw and the inquiry that should
accompany such a decision. Id. However, the state referenced the Sixth
Amendment right to effective assistance of counsel in its appellate brief.
(Docket #26-5). Respondent believes that Petitioner’s argument in the state
appellate court, “liberally construed,” was one that he was denied effective
assistance of counsel when Bonneson was not permitted to withdraw.
(Docket #37 at 17). The Court is not so sure, but it has no choice but to press
on in its review of the claim.
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That is not the end of the Court’s concerns. Petitioner’s claim is, put
simply, bizarre. It is presented as one alleging that he was afforded
ineffective assistance of counsel, but it is not directly aimed at Bonneson’s
conduct. Rather, Petitioner says that the trial court forced an ineffective
attorney on him by refusing to let Bonneson withdraw and appoint new
counsel. Put another way, Petitioner asserts that he did not in fact wish to
proceed pro se, but that if he did not, he would have been saddled with
ineffective representation. It appears that this final point suffers from
procedural default; Petitioner did not present it to the Wisconsin Court of
Appeals. Lieberman v. Thomas, 505 F.3d 665, 669–70 (7th Cir. 2007). It is also
not the trial court’s conduct that is the subject of this habeas action, but
instead the decision of the Wisconsin Court of Appeals.
Moreover, however it is styled, the claim is an uneasy fit within the
framework for ineffective assistance of counsel. 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.]
...

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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). Generally speaking, when reviewing a state court’s
determination of an ineffective assistance claim, many layers of deference
are at play. As Blake explains, claims of ineffective assistance are already
assessed with deference to the defendant’s counsel. Presenting such claims
in the context of a habeas proceeding means that Petitioner must not only
prove that the Court of Appeals’ analysis was wrong, but additionally that
it was “so lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington, 562 U.S. at 103; id. at 105 (“The standards
created by Strickland and § 2254(d) are both highly deferential, and when
the two apply in tandem, review is doubly so[.]”) (citations and quotations
omitted).
But this is not the question the Wisconsin Court of Appeals
answered. Instead, it first determined that pursuant to state law, the trial
court had made an adequate inquiry into the basis of the motions to
withdraw. Brito, 2015 WL 5840711, at *1 (citing State v. Lomax, 432 N.W.2d
89, 92 (Wis. 1988). Second, again with reference solely to state law, the court
found that the trial court had not abused its discretion in finding that the
conflict between Petitioner and Bonneson fell short of “a total lack of
communication that prevented an adequate defense and frustrated a fair

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presentation of the case.” Id. (quoting Lomax, 432 N.W.2d at 90). Strickland
was never referenced.
Nevertheless, assuming one could find a viable path through this
morass of problems, this Court cannot say that the Wisconsin Court of
Appeals’ decision was contrary to Strickland, or more specifically, that all
fairminded jurists would agree that Strickland’s rule was violated. This
requires an assumption that assessing whether there was a “total lack of
communication” is analogous to determining whether Bonneson could
provide effective assistance of counsel. From this perspective, the
Wisconsin Court of Appeals appropriately found that although the
communication between Petitioner and his counsel was strained, it did not
reflect a total lack of communication. Brito, 2015 WL 5840711, at *2.
Petitioner was on his third attorney in seven months, and it was clear that
he would be unsatisfied with any representation provided to him, other
than a lawyer that would simply do precisely what he demanded. Further,
Bonneson was in the best position to continue representing Petitioner to
and through the second trial, as he was intimately familiar with the case.
Petitioner’s arguments to the contrary lack merit. He primarily
discusses various instances where Bonneson was allegedly ineffective or
which showed apparent conflict between himself and Bonneson. See
(Docket #33 at 1–5, 8–9; Docket #41 at 1–2). This argument goes to the state
law issue of whether the trial court conducted an appropriate inquiry into
the motions to withdraw. Further, Petitioner’s contention fails to establish
that the Wisconsin Court of Appeals was completely unreasonable in
deciding that there was something less than a total breakdown of
communication.

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Petitioner’s next argument is that the judge, jury, district attorney,
and Bonneson himself harbored racial animus toward him because they are
Caucasian and he is Hispanic. (Docket #33 at 5–7; Docket #41 at 3).
Petitioner offers no actual evidence of bias, even as little as a statement with
racial overtones. Petitioner’s contention is based solely on his delusional
belief that he was convicted because of his race, not because he committed
the subject crimes.
Finally, Petitioner claims that while he is not challenging the
determination that he was competent to proceed pro se, he does challenge
its voluntariness. (Docket #33 at 10; Docket #41 at 4). As the Court already
observed, this issue is procedurally defaulted because it was not argued in
Petitioner’s appeal. Even if the argument were not defaulted, it is meritless
for the reasons stated above. Petitioner was provided competent counsel
more than once and fought with each of them. The problem was not with
Petitioner’s counsel, but with Petitioner himself and his unwillingness to
take legal advice.
5.

CONCLUSION
“The Sixth Amendment does not guarantee a friendly and happy

attorney-client relationship.” United States v. Mutuc, 349 F.3d 930, 934 (7th
Cir. 2003). Though Petitioner and Bonneson undoubtedly had a less than
happy relationship, Petitioner has not shown that the Wisconsin Court of
Appeals unreasonably applied Supreme Court precedent in upholding the
denial of Bonneson’s motions to withdraw. Indeed, he has not even shown
that its conclusion was wrong. The petition must, therefore, be dismissed
with prejudice.
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
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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). As the Court discussed above, no reasonable jurists could debate
whether the petition has merit. The Court must, therefore, deny Petitioner
a certificate of appealability.
Finally, the Court closes with some information about the actions
that Petitioner may take if he wishes to challenge the Court’s resolution of
this case. This order and the judgment to follow are final. A dissatisfied
party may appeal this Court’s decision to the Court of Appeals for the
Seventh Circuit by filing in this Court a notice of appeal within 30 days of
the entry of judgment. See Fed. R. App. P. 3, 4. This Court may extend this
deadline if a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30-day deadline. See Fed. R.
App. P. 4(a)(5)(A). Moreover, under certain circumstances, a party may ask
this Court to alter or amend its judgment under Federal Rule of Civil
Procedure 59(e) or ask for relief from judgment under Federal Rule of Civil
Procedure 60(b). Any motion under Federal Rule of Civil Procedure 59(e)
must be filed within 28 days of the entry 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
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applicable rules and determine what, if any, further action is appropriate in
a case.
Accordingly,
IT IS ORDERED that Petitioner’s amended petition for a writ of
habeas corpus (Docket #7) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that a certificate of appealability as to
Petitioner’s petition be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 30th day of November, 2018.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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