Dodd v. Dittman

Filing 30

ORDER DISMISSING CASE signed by Magistrate Judge Stephen C Dries on 5-18-2020. (cc: all counsel)(Dries, Stephen)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JASON DODD,
Petitioner,
v.

Case No.

17-CV-1021-SCD

MICHAEL DITTMAN,
Respondent.
DECISION AND ORDER
The petitioner filed this habeas corpus action on July 24, 2017. Magistrate Judge
Duffin screened the petition and concluded there were multiple viable and exhausted claims
in the petition. ECF No. 7. The case was later assigned to District Judge Pepper. More
recently, the parties consented to the jurisdiction of the undersigned magistrate judge. For the
reasons given below, the petition will be denied.
BACKGROUND
A Milwaukee County jury found the petitioner guilty of an armed robbery, as party to
a crime, committed at an auto parts store.1 Witnesses reported seeing a man wearing latex
gloves and sunglasses demanding money while armed with a gun. The man then fled in a
green SUV. When police later located the SUV, they arrested the driver, a man named
Jackson. Examination of Jackson’s cellphone revealed a large number of calls between

1

The facts are taken largely from the court of appeals’ opinion, ECF No. 14-7.

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Jackson and a contact named “Jason,” who police later discovered to be Jason Dodd, the
petitioner in this action.
One of the witnesses, a store employee, testified that he found a pair of gloves behind
the counter at the store. After he threw them away, he saw police remove the gloves from the
garbage. The state crime lab found that the petitioner’s DNA was on both of the gloves. A
different store employee picked the petitioner out of a photo array, identifying him as the man
who robbed him. Based on this and other evidence, a jury convicted the petitioner, and the
court sentenced him to twelve years of imprisonment. It later denied a motion for
postconviction relief. The court of appeals affirmed, and the Wisconsin Supreme Court
denied his petition for review. This habeas action followed.
ANALYSIS
This habeas petition is subject to the provisions of the Antiterrorism and Effective
Death Penalty Act, known as AEDPA. “The Antiterrorism and Effective Death Penalty Act
of 1996 modified a federal habeas court’s role in reviewing state prisoner applications in order
to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given effect
to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002).
Habeas is not simply another round of appellate review. 28 U.S.C. § 2254(d) restricts
habeas relief to cases in which the state court determination “resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States” or “a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.”

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A judgment is “contrary to” Supreme Court precedent if the state court “contradicts
the governing law set forth in [Supreme Court] cases.” Coleman v. Hardy, 690 F.3d 811, 814
(7th Cir. 2012). A state-court decision is an “unreasonable application of” clearly established
law “if the state court identifies the correct governing legal principle from [the Supreme]
Court's decisions but unreasonably applies that principle to the facts of the prisoner’s case.”
Id. As for the determination of the facts, federal courts will not “characterize these state-court
factual determinations as unreasonable ‘merely because [we] would have reached a different
conclusion in the first instance.’ Instead, § 2254(d)(2) requires that we accord the state trial
court substantial deference. If “‘[r]easonable minds reviewing the record might disagree’
about the finding in question, ‘on habeas review that does not suffice to supersede the trial
court’s . . . determination.’” Brumfield v. Cain, 576 U.S. 305, 135 S. Ct. 2269, 2277 (2015)
(quoting Wood v. Allen, 558 U.S. 290, 301 (2010) (other citations omitted)).
The scope of federal review of state court decisions on habeas is “strictly limited” by
28 U.S.C. § 2254(d)(1). Jackson v. Frank, 348 F.3d 658, 661 (7th Cir. 2003). The unreasonable
application standard is “a difficult standard to meet.” Id. at 662. Even an incorrect or
erroneous application of the federal precedent will not justify habeas relief; rather, the state
court application must be “something like lying well outside the boundaries of permissible
differences of opinion.” Id. at 662 (internal citation omitted).
1. Ineffective Assistance – Failure to Investigate Alibi Witness
The petition alleges several reasons that trial counsel was ineffective. The right to
assistance of counsel means the right to effective assistance of counsel. McMann v. Richardson,
397 U.S. 759, 771, n. 14 (1970). As the parties and the state courts recognize, the lodestar for

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ineffective assistance claims is Strickland v. Washington, 466 U.S. 668 (1984). There, the
Supreme Court held as follows:
A convicted defendant’s claim that counsel’s assistance was so defective as to
require reversal of a conviction or death sentence has two components. First,
the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Unless a defendant makes both showings, it cannot be said that the conviction
or death sentence resulted from a breakdown in the adversary process that
renders the result unreliable.
466 U.S. at 687. The Court elaborated that “scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after
conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense
after it has proved unsuccessful, to conclude that a particular act or omission of counsel was
unreasonable.” Id. at 689.
When the Strickland analysis arises in the habeas context, a court’s review of a state
court’s decision is “doubly deferential.” Cullen v. Pinholster, 563 U.S. 170, 190 (2011). That is,
the court must first take “a highly deferential look at counsel’s performance,” in which
“counsel is strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690.
Then, the court must view the petitioner’s claim through the “deferential lens of § 2254(d).”
Cullen, 563 U.S. at 190 (quoting Knowles v. Mirzayance, 556 U.S. 111, 121 n.2 (2009)). That
means that the “pivotal question” is not whether “defense counsel’s performance fell below
Strickland’s standard,” but whether “the state court’s application of the Strickland standard was
unreasonable.” Harrington v. Richter, 562 U.S. 86, 101 (2011). On top of this double deference,
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courts must bear in mind that “because the Strickland standard is a general standard, a state
court has even more latitude to reasonably determine that a defendant has not satisfied that
standard.” Mirzayance, 556 U.S. at 123; see also Harrington, 562 U.S. at 101 (“The more general
the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.”).
As the Supreme Court emphasized in Harrington: “If this standard is difficult to meet, that is
because it was meant to be.” 556 U.S. at 123.
The petitioner first argues that counsel failed to investigate or call Yesenia Claypool
as a witness. In a post-conviction filing, the petitioner included an affidavit from Claypool
attesting to the petitioner’s whereabouts at the time the crime was committed. Specifically,
she asserted that the petitioner remained in bed with her into the afternoon hours on the days
between April 29 to May 2. See ECF No. 1 at 14-15. Because the crime was committed at
approximately 11:00 a.m. on April 29, her testimony would have bolstered the petitioner’s
argument that he was innocent. Despite being alerted to the existence of this alibi witness,
counsel did not pursue the matter. The petitioner believes the state courts’ treatment of this
issue was “ridiculous.” ECF No. 1 at 12-13.
The State argues that the petitioner has procedurally defaulted this issue by failing to
present it to the Wisconsin Supreme Court in his petition for review. “Fair presentment
requires the petitioner to give the state courts a meaningful opportunity to pass upon the
substance of the claims later presented in federal court.” Boyko v. Parke, 259 F.3d 871, 788 (7th
Cir. 2001) (citing Rodriguez v. Scillia, 193 F.3d 913, 916 (7th Cir. 1999)). To satisfy this
requirement, the petitioner must have placed both the operative facts and the controlling legal
principles before the state courts. Id. “Thus, if a petitioner fails to assert in the state courts a
particular factual basis for the claim of ineffective assistance, that particular factual basis may
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be considered defaulted.” Pole v. Randolph, 570 F.3d 922, 935 (7th Cir. 2009). “This means
that the petitioner must raise the issue at each and every level in the state court system,
including levels at which review is discretionary rather than mandatory.” Lewis v. Sternes, 390
F.3d 1019, 1025–26 (7th Cir. 2004).
In his petition for review, filed by appellate counsel, the petitioner raised four
arguments, all alleging ineffective assistance: he argued counsel was ineffective for failing to
impeach a witness with prior convictions, for not objecting to gaps in the chain of custody,
for not objecting to an impermissibly suggestive out-of-court identification, and for her silence
during sentencing. ECF No. 14-8 at 2. The petition does not mention investigation of an alibi
witness.
The petitioner does not dispute the fact of his procedural default. Instead, he
recognizes that a federal habeas court may nevertheless consider a defaulted argument if the
petitioner can show cause and prejudice for the default or a fundamental miscarriage of
justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000). In that vein, the petitioner argues that
his appellate counsel was ineffective for not raising the issue with the state supreme court.
Specifically, he asserts that counsel incorrectly told him there was a limit on the number of
issues the court would consider, and so he had to limit the issues presented to the four
described above.
It is true in a general sense that “sub-par representation might supply cause for his
procedural default of these claims.” Lewis, 390 F.3d at 1026. However, because a defendant
has no constitutional right to counsel at the state supreme court level of review, ineffective
assistance at that level cannot itself supply the cause required to overcome the procedural
default. The Seventh Circuit has confronted the issue head-on:
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Mr. Anderson has procedurally defaulted his ineffective assistance of
counsel claim. To preserve this claim for habeas review, Mr. Anderson needed
to present it to the Supreme Court of Illinois in his petition for discretionary
review. In failing to present this claim to the Illinois courts, Mr. Anderson
deprived the state courts of the first opportunity to review it. This failure
resulted in a procedural default of his claim.
Mr. Anderson argues that, because he had ineffective assistance of
counsel in his petition to the Supreme Court of Illinois, there is “cause” for his
failure to present his ineffective assistance of counsel claim in his petition for
discretionary review to the Supreme Court of Illinois. The Supreme Court of
the United States has held that “[a]ttorney error that constitutes ineffective
assistance of counsel is cause.” Coleman v Thompson, 501 U.S. 722, 753–54
(1991). However, “a criminal defendant does not have a constitutional right to
counsel to pursue discretionary state appeals,” Wainwright v. Torna, 455 U.S.
586, 587 (1982), and “the right to appointed counsel extends to the first appeal
of right, and no further.” Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). In
proceedings in which a petitioner does not have a constitutional right to
counsel, “a petitioner cannot claim constitutionally ineffective assistance of
counsel in such proceedings.” See Coleman, 501 U.S. at 752–53. Mr. Anderson
therefore had no constitutional right to counsel for his discretionary petition to
the Supreme Court of Illinois, and he could not have received ineffective
assistance of counsel for the failure of counsel to raise his ineffective assistance
of counsel claim in his petition to the Supreme Court of Illinois. Mr. Anderson
thus has procedurally defaulted his ineffective assistance of counsel claim, and
he has not made a substantial showing of the denial of a constitutional right.
Anderson v. Cowan, 227 F.3d 893, 900–01 (7th Cir. 2000) (some citations omitted). Based on
Anderson, counsel’s performance with respect to the petition filed with the state supreme court
cannot excuse a procedural default.
In the alternative, the petitioner also argues that he is actually innocent, invoking the
“fundamental miscarriage of justice” exception to procedural defaults. Only in “the
circumstance in which the habeas petitioner can demonstrate a sufficient probability that our
failure to review his federal claim will result in a fundamental miscarriage of justice” may a
federal habeas court review a procedurally defaulted claim that has not been excused by a
demonstration of cause and prejudice. Ward v. Hinsley, 377 F.3d 719, 725 (7th Cir. 2004)
(citing Edwards v. Carpenter, 529 U.S. 446, 451 (2000)). These kinds of claims involve
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“extraordinary instances when a constitutional violation probably has caused the conviction
of one innocent of the crime.” McCleskey v. Zant, 499 U.S. 467, 494 (1991).
Here, the petitioner’s DNA was found at the crime scene on a pair of latex gloves
consistent with the pair of gloves worn by the robber. Cellphone records showed that the
petitioner had been in frequent contact (thirty-three contacts within a six-hour period) with
Jackson, the driver of the getaway vehicle. There was a suggestive absence of contacts during
the time of the robbery. See ECF No. 14-3 at 3. A store employee identified the petitioner in
a photo array. Moreover, as the court of appeals noted, when asked at trial about his
whereabouts on the day of the crime, the petitioner did not refer to the alibi witness. Had he
actually been with Claypool, presumably he would have said so. In short, this is not the kind
of case in which the miscarriage of justice exception would reasonably be invoked. The
argument is procedurally defaulted and no showing of cause or a miscarriage of justice has
been made.
2. Ineffective Assistance – Failure to Impeach Key Witness with Prior Convictions
The petitioner next argues that his counsel was ineffective because she failed to
impeach one of the State’s witnesses, H.P., who had three prior convictions. He states that
his attorney had no strategic reason for failing to inquire about H.P.’s convictions, and the
witness was a key factor, and even a “star witness,” in his conviction. ECF No. 1 at 25.
The court of appeals, echoing the trial court, found no ineffective assistance. Both
courts cited Strickland v. Washington, 466 U.S. 668, 687 (1984), noting that the test for assessing
counsel’s performance is whether the representation fell below objective standards of
reasonableness. The court of appeals found that H.P. was a disinterested witness who had no
stake in the outcome and no longer even worked at the store that was robbed. His testimony
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was also consistent with that of the other witness, the store manager known as J.S. Finally,
the court found that the petitioner had not shown a reasonable probability that the outcome
of his trial would have been any different.
The state courts did not unreasonably apply Strickland. The fact that the witness might
have had prior convictions could have partially undermined his credibility, but the fact remains
that there is no plausible theory explaining why the witness would make anything up under
these circumstances. It is pure speculation to believe that a juror would discredit his testimony
based on prior convictions when video evidence and the testimony of J.S. corroborated much
of his story. Because it is doubtful that impeachment of the witness would have had any
practical impact, counsel’s decision not to bring up the prior convictions cannot be said to be
deficient.
3. Ineffective Assistance – Sentencing
Next, the petitioner asserts that his trial counsel’s failure to participate in his sentencing
was so complete that prejudice should be presumed. He states that, apart from stating that her
client had already been punished by revocation, counsel remained silent during the hearing.
She did not meet with him about the sentencing or otherwise advocate for any lesser sentence.
The petitioner believes this total abandonment warrants an analysis under United States v.
Cronic, 466 U.S. 648 (1984), rather than Strickland. Under Cronic, a defendant does not have
to show that counsel’s performance resulted in prejudice; instead, if counsel “entirely fails to
subject the prosecutor’s case to meaningful adversarial testing,” prejudice is presumed. Id. at
659. Nearly twenty years later, the Supreme Court clarified that the Cronic standard comes
into play only when counsel’s failure was a “complete” failure, as opposed to failures
manifested at various “specific points” in the proceedings:
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Respondent argues that his claim fits within the second exception identified in
Cronic because his counsel failed to “mount some case for life” after the
prosecution introduced evidence in the sentencing hearing and gave a closing
statement. We disagree. When we spoke in Cronic of the possibility of
presuming prejudice based on an attorney’s failure to test the prosecutor’s case,
we indicated that the attorney’s failure must be complete. We said “if counsel
entirely fails to subject the prosecution’s case to meaningful adversarial
testing.” Cronic, supra, at 659 (emphasis added). Here, respondent’s argument
is not that his counsel failed to oppose the prosecution throughout the
sentencing proceeding as a whole, but that his counsel failed to do so at specific
points. For purposes of distinguishing between the rule of Strickland and that of
Cronic, this difference is not of degree but of kind.
Bell v. Cone, 535 U.S. 685, 696–97 (2002) (some citations omitted). Since then, the Seventh
Circuit has also recognized that Cronic has not generally been applied when counsel fails to
introduce evidence at a sentencing hearing. “[I]n light of Bell it is most apt to say that counsel’s
failure was not complete, but occurred ‘at specific points’ in the proceeding. As such, we are
satisfied that Strickland is the appropriate governing precedent.” Barrow v. Uchtman, 398 F.3d
597, 604 n.4 (7th Cir. 2005). And, in Miller v. Martin, 481 F.3d 468, 473 (7th Cir. 2007), the
court noted that “[i]n the wake of Bell, courts have rarely applied Cronic, emphasizing that
only non-representation, not poor representation, triggers a presumption of prejudice.”
Because I conclude that counsel’s performance here was not a complete abdication of the
advocate’s role, Strickland governs rather than Cronic. Cf. Miller, 481 F.3d at 473 (applying
Cronic after lawyer stated that neither he nor his client would be participating in the
proceedings.)
The petitioner’s portrayal of counsel as being essentially silent during sentencing is an
exaggeration. His lawyer appeared at the sentencing and made an argument on his behalf,
however brief. The argument’s brevity, however, must be placed in context. Before defense
counsel spoke, the prosecutor pointed out that “the facts of the case are fairly straightforward
in terms of gunmen coming into the store pointing the gun getting money out of the till, and
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running out of the store.” See ECF No. 14-17 at 2-3. “There’s not much to say about this,” he
added. Id. at 3. The prosecutor then explained that the petitioner had committed a very similar
armed robbery in 2002 and had been on extended supervision at the time of the latest robbery.
Because the petitioner had received seventeen years on the previous conviction, the
prosecutor believed he should receive more than that now: “if you got 17 last time and you
do another one while you are out on E.S., the numbers should then be bigger.” ECF No. 1417 at 4. That was the essence of the prosecutor’s argument¾no more than a few minutes
discussing what he viewed as a “straightforward” case.
Defense counsel then spoke. She first noted that the petitioner was due 144 days of
credit. ECF No. 14-17 at 5. She then observed that he’d received six years of imprisonment
for violating his extended supervision in this case. “So obviously he’s already been
significantly punished for violating his extended supervision.” Id. This was an argument for
leniency, to explain to the sentencing judge that the petitioner had already been punished, at
least partially. Then, counsel conceded that “[a]s far as the facts go, I can’t add anything to
the facts.” Id. at 5. “At this point I think Mr. Dodd should make any further statement.” Id.
In his elocution, the petitioner began reading what appears to be a somewhat
sophisticated presentation of his various grievances with his trial proceedings, many of which
are discussed elsewhere in this opinion. Id. at 6-11. Following that, he stated that he was
thirty-two years old, with two daughters, and asked for six or seven years of confinement,
with ten on extended supervision. Id. at 10. He also pointed out that his parole agent would
verify that he had no supervision problems. Finally, he mused that he “should have had a
bench trial, but I went to trial [by jury].” Id. at 12.

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The judge disagreed, responding, “I don’t think you should have.” Id. The court
elaborated: “I thought there was plenty of evidence in this case and I didn’t find you credible
in your testimony.” Id. The sentencing judge further indicated that although he would not
then rule on the petitioner’s arguments seeking a new trial, it was his view, based on his
twenty-five years in the criminal justice system, that the petitioner’s lawyer was “one of the
best trial attorneys in Milwaukee and it was not her performance in my view that led to the
verdict here. There was evidence. There was a lot of it.” Id. at 12-13.
Review of the sentencing transcript indicates two things. First, counsel performed
adequately. In this case, as reflected in the prosecutor’s own very brief remarks, there was no
need to make a lengthy presentation. As the sentencing judge indicated, there was a lot of
evidence and, as the prosecutor pointed out, it was a fairly straightforward robbery. The
petitioner has yet to explain in any court what rhetorical nugget or mitigating evidence his
counsel should have produced to win additional lenience from the judge. Smith v. Brown, 764
F.3d 790, 799 (7th Cir. 2014) (“Nor has he offered any potential mitigating evidence or
argument [counsel] could have made to obtain a lower sentence.”) And counsel’s decision to
turn quickly to the petitioner’s elocution was a reasonable strategy, given that he was able to
explain his personal circumstances and ask for leniency himself. In light ofStrickland’s
deferential standard, it is not difficult to imagine that counsel simply thought there would be
little point in making an extended plea for leniency or adducing other facts.
Second, the transcript also reveals the absence of prejudice: the sentencing judge made
no secret of his view that the petitioner was guilty and not credible. The twenty-year sentence
he imposed (twelve years of incarceration followed by eight years of extended supervision) is
in line with what could be expected based on the petitioner’s previous seventeen-year sentence
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for a similar crime. The leniency request, as voiced by the petitioner himself, was likely the
only play. In short, it is hard to imagine any additional effort on counsel’s part that would
have affected the sentence imposed by the judge, and so even if counsel’s performance were
inadequate, the petitioner would be unable to demonstrate prejudice. Certainly, given the
deferential standard of AEDPA, I cannot conclude that the court of appeals unreasonably
applied Strickland in finding no ineffective assistance here.
4. Ineffective Assistance – Failure to Challenge DNA Analyst Testimony
The petitioner next argues that his trial counsel was ineffective for failing to impeach
expert witness Margaret Cairo, who had performed DNA testing on the latex gloves found at
the crime scene. The State argues that this claim is procedurally defaulted, as it was not raised
in the petition for review with the Wisconsin Supreme Court. The petitioner’s response is that
he should be excused from the procedural default because counsel was ineffective for failing
to raise the issue in the petition. ECF No. 16 at 12. But, for the reasons given in Section 1
above, that will not suffice. The court therefore cannot consider the claim on its merits.
5. Violation of Brady v. Maryland Regarding Late Production of DNA Evidence
The petitioner argues that the State failed to produce the DNA packet until the eve of
trial, which he believes should be deemed a violation of Brady v. Maryland, 373 U.S. 83 (1963).
Alternatively, he argues that his trial counsel was ineffective for failing to object to the late
disclosure. Once again, however, this claim is procedurally defaulted for the reasons discussed
in Section 1.
6. Ineffective Assistance – Failing to Suppress the Out-of-Court Identification
The petitioner next argues that trial counsel was ineffective for failing to move for
suppression of the out-of-court identification made by witness J.S. He argues that the photo
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array was impermissibly suggestive because he was the only individual in the array showing
his teeth, an important fact because the petitioner has gold teeth.
It is highly doubtful that a motion to suppress based on the suggestiveness of the photo
array would have succeeded. First, as a factual matter, J.S. identified the petitioner’s photo
before being shown several other photos in the array. J.S. therefore had no idea if the
individuals in the other photos would have had gold teeth as well¾as far as J.S. was
concerned, the petitioner was not the “only” person in the photo array with gold teeth. See
ECF No. 14-7 at 16.
Second, there is no impermissible suggestiveness here. As a matter of due process, a
defendant is entitled to have police follow procedures that do not unduly influence witnesses
to choose one person over another in a lineup. Gregory-Bey v. Hanks, 332 F.3d 1036, 1047 (7th
Cir. 2003). To demonstrate an impermissible kind of suggestiveness, the petitioner would
have to show that the officer who conducted the array exploited the fact that the petitioner
had gold teeth; for example, the officer knew that the witness had noticed the suspect’s teeth
and then instructed the petitioner to reveal his teeth in the photo. Here, just the opposite is
true. As the petitioner himself argues, it was only after his conviction that a private investigator
spoke to J.S. and learned that J.S. had remembered the petitioner’s teeth, and even then it is
hazy as to whether J.S. remembered them being shiny white or gold. See ECF No. 1 at 47;
ECF No. 14-3 at 7 n.2. Thus, there is no indication that any officer involved in creating the
photo array had his thumb on the scale to influence the identification made by J.S. Any
suggestiveness that might have occurred cannot be laid at the hands of the police, and thus
due process concerns are not implicated. As explained by the Seventh Circuit:
An identification procedure is unduly suggestive when it is so suggestive as to
create a substantial likelihood of irreparable misidentification. Where the police
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subtly (or in some cases possibly even not so subtly) thrust upon the witness
signals or clues that lead the witness to select a predetermined suspect, the
identification procedure is not likely to provide an unbiased reflection of the
witness's personal knowledge. But we are convinced that in this factual
situation this is not a case where the police, like a magician pushing the two of
hearts upon an unwitting audience member asked to “pick a card,” prodded
the witnesses to select Gregory–Bey (and not some other suspect) from the
photospread. Gregory–Bey has been unable to point out to us any example of
evidence in the record that might even suggest that the police tipped the
witnesses off to the fact that Gregory–Bey’s picture was among the many
photographs in the display.
Gregory-Bey, 332 F.3d at 1047 (citations omitted). For these reasons, there are no due process
concerns with the lineup, and it is therefore impossible to find fault with counsel’s failure to
file a motion to suppress.
7. Brady Violation Based on Search Logs and Incomplete Video
The petitioner next argues that the State violated Brady by not producing a complete
video recording of the robbery or search logs detailing items found during the search of the
getaway vehicle. Once again, because these claims have not been presented to the Wisconsin
Supreme Court, and because there is no adequate showing of cause, the claim is procedurally
defaulted.
8. Ineffective Assistance – Failure to Challenge Chain of Custody
The petitioner’s final argument is that counsel should have objected after the State did
not establish the chain of custody for the latex gloves. The trial court made short shrift of this
argument, finding that the claims were “speculative as there is no showing that the gloves
were contaminated or tampered with in any way.” ECF No. 14-3 at 6. The court of appeals
agreed, finding that the testimony was uncontroverted that H.P. stated he had picked up the
gloves from the floor and placed them in the garbage. ECF No. 14-7 at 10. The other store
employee, J.S., had also seen the gloves on the floor immediately after the robbery. An officer
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retrieved them and placed the gloves in inventory, and a DNA analyst with the state crime
lab testified that she swabbed both sides of the gloves and found DNA matching the petitioner.
The petitioner asserts that the latex gloves with his DNA were somehow substituted
by the police. But the essence of this argument is limited to a directive that the court “please
see exhibits attached to initial petition F, G, H, I, K, V & W,” and a statement that “Exhibit
F is the key to everything.” ECF No. 10 at 25; ECF No. 1 at 67-68. It is not a court’s job to
sort through hundreds of pages of trial testimony and exhibits to discern the essence of the
petitioner’s argument that the police fabricated evidence. Corley v. Rosewood Care Ctr., Inc. of
Peoria, 388 F.3d 990, 1001 (7th Cir. 2004) (“[W]e will not root through the hundreds of
documents and thousands of pages that make up the record here to make his case for him.”)
Even if that were a court’s job, to the extent the petitioner is staking his reliance on
Exhibit F, which describes cream-colored latex gloves with various states of discoloration or
dirt, see ECF No. 1-1 at 39, such an argument is hardly revelatory.. The petitioner asserts that
the gloves described in Exhibit F are not the same as those in Exhibit G, which he asserts (in
a handwritten note on the exhibit) are brand new gloves planted by the police “and they had
H.P. lie!!” ECF No. 1-1 at 40. But H.P., J.S., and Officer Robert Crawley all testified that the
gloves were found in the store. Moreover, the petitioner has not explained how the State
obtained his DNA to plant on the gloves that the crime lab examined. The analyst testified
that there was DNA from two people on one glove, with one person’s DNA on the second
glove. ECF No. 1-1 at 58-61. When she entered the DNA into the databank, it produced a
“hit” to the petitioner’s name. Id. at 62.
In sum, it is not surprising that both state courts addressing this argument found it
speculative and unsupported. See ECF No. 14-7 at 11. From that conclusion it follows that
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counsel was under no obligation to undertake some line of inquiry based on the petitioner’s
tampering/chain-of-custody theory. The state courts therefore did not unreasonably apply
Strickland in ruling against the petitioner.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, this Court must “issue
or deny a certificate of appealability when it enters a final order adverse to the applicant.” A
certificate should be issued only where the petitioner “has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order for a certificate of
appealability to issue, a petitioner must show that “reasonable jurists” would find this Court’s
“assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473,
484 (2000); Buck v. Davis, 137 S. Ct. 759, 773 (2017). Here, I cannot conclude that the
assessment of the merits of the petitioner’s claims is debatable by reasonable jurists.
Moreover, where a petition is dismissed (here, in part) on procedural grounds, the petitioner
must show both that reasonable jurists would “find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at
484. Here, no reasonable jurist would find the court’s procedural rulings debatable.
Accordingly, a certificate of appealability will be denied.

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CONCLUSION
For the reasons given above, the petition is DENIED and the case is DISMISSED. A
certificate of appealability is DENIED. The clerk will enter judgment accordingly.

SO ORDERED this 18th day of May, 2020.

STEPHEN C. DRIES
United States Magistrate Judge

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