McDowell v. Pollard

Filing 18

DECISION AND ORDER signed by Magistrate Judge David E Jones on 9/24/19 that Matthew A. McDowell's Petition for Writ of Habeas Corpus, ECF No. 1 , is DENIED. IT IS FURTHER ORDERED that this action is DISMISSED and that a certificate of appealability is DENIED. Judgment shall be entered accordingly. (cc: all counsel)(kah)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MATTHEW A. MCDOWELL,
Petitioner,
v.

Case No. 17-CV-1267

WILLIAM POLLARD,
Respondent.
DECISION AND ORDER
DENYING PETITION FOR WRIT OF HABEAS CORPUS
In March 2014, Matthew A. McDowell pled guilty to a reduced charge of firstdegree reckless homicide and concealing a corpse. In June 2014, the Kenosha
County Circuit Court sentenced Mr. McDowell to consecutive prison terms of
twenty-nine years of initial confinement and ten years of extended supervision on
the reckless homicide count, and three years of initial confinement and one year of
extended supervision on the concealing a corpse count. Mr. McDowell is currently
serving his time at Dodge Correctional Institution.
In 2017, Mr. McDowell filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254, alleging that his custody is unconstitutional because he was
sentenced based on inaccurate information and that a new factor warrants resentencing. The Respondent opposes the petition, arguing that Mr. McDowell has
failed to meet his burden of proving that the Wisconsin Court of Appeals’ decision is
contrary to, or an unreasonable application of clearly established federal law, or
1

based on an unreasonable determination of the facts in light of the evidence
presented. For the following reasons, the Court will deny Mr. McDowell’s petition.
I.

Background
Matthew McDowell pled guilty to first-degree reckless homicide and

concealing a corpse. Petition For Writ Of Habeas Corpus 2. The following facts are
taken from the Wisconsin Court of Appeals’ decision:
McDowell admitted that during an argument, he pushed the victim onto a bed
and placed his hands on her face and neck. He stated she was choking and that
he heard a crack and realized the victim was no longer breathing. The medical
examiner determined the cause of death to be blunt neck trauma due to assault
and the death was ruled a homicide.
Court of Appeals Decision 2. Mr. McDowell was given a bifurcated sentence of
thirty-nine years for count one, and a bifurcated sentence of four years for count
two. Id. He is currently incarcerated at Dodge Correctional Institution. Pet. 1
Mr. McDowell filed a post-conviction motion for relief/sentence modification
and argued that his due process right to be sentenced on accurate information was
violated and that a new factor warranted re-sentencing. Pet. 4. His motion was
denied. Id. Mr. McDowell subsequently filed a direct appeal, arguing the same
grounds as his post-conviction motion. Pet. 3. On March 16, 2016, the Wisconsin
Court of Appeals issued a decision affirming Mr. McDowell’s sentence. See Ct. App.
Decision.
On September 20, 2017, Mr. McDowell filed a federal habeas corpus petition
pursuant to 28 U.S.C. § 2254, asserting three grounds for relief: (1) that the Court
of Appeals erred in denying his request for re-sentencing as he was sentenced based
2

on inaccurate information, (2) that a new factor entitles him to a re-sentencing, and
(3) that the errors at sentencing were not harmless. Mr. McDowell was allowed to
proceed on his claims. See Rule 4 Order, ECF No. 4. The Petition is now fully
briefed and ready for disposition. See Brief in Support of Petitioner’s Habeas Corpus
Petition, ECF No. 11; Brief Opposing Petition for Writ of Habeas Corpus, ECF No.
14; and Reply Brief in Support of Petitioner’s Habeas Corpus Petition, ECF No. 17.
II.

Standard of Review
Federal habeas corpus review is governed by the Antiterrorism and Effective

Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214. Under AEDPA, a
prisoner in custody pursuant to a state-court judgment of conviction is entitled to
federal habeas relief only if he is “in custody in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C. § 2254(a). With respect to claims
adjudicated on the merits in state court, a federal court can grant an application for
a writ of habeas corpus “only if the state court’s decision was contrary to clearly
established Supreme Court precedent, involved an unreasonable application of such
precedent, or was based on an unreasonable determination of the facts in light of
the evidence presented in state court.” Promotor v. Pollard, 628 F.3d 878, 888 (7th
Cir. 2010) (citing 28 U.S.C. § 2254(d)); see also White v. Woodall, 134 S. Ct. 1697,
1702 (2014).
“A legal principle is ‘clearly established’ within the meaning of [§ 2254(d)(1)]
only when it is embodied in a holding of [the Supreme Court].” Thaler v. Haynes,
559 U.S. 43, 47 (2010) (citing Carey v. Musladin, 549 U.S. 70, 74 (2006); Williams v.

3

Taylor, 529 U.S. 362, 412 (2000)). A state-court decision is “contrary to” clearly
established federal law if “the state court arrives at a conclusion opposite to that
reached by [the Supreme Court] on a question of law or if the state court decides a
case differently than [the Supreme Court] has on a set of materially
indistinguishable facts.” Williams, 529 U.S. at 412–13 (opinion of O’Connor, J.).
Similarly, a state-court decision results in an “unreasonable application” of clearly
established federal law when that court either “identifies the correct governing legal
rule from [Supreme Court] cases but unreasonably applies it to the facts of the
particular state prisoner’s case” or “unreasonably extends a legal principle from
[Supreme Court] precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context where it should
apply.” Id. at 407. A writ of habeas corpus may not issue under the “unreasonable
application” clause “simply because the federal court concludes that the state court
erred. Rather, the applicant must demonstrate that the state court applied the
Supreme Court’s precedent in an objectively unreasonable manner.” Kubsch v. Neal,
838 F.3d 845, 859 (7th Cir. 2016) (citing Woodford v. Visciotti, 537 U.S. 19, 24–25
(2002)). Thus, the petitioner “must show that the state court’s ruling . . . was so
lacking in justification that there was an error well understood and comprehended
in existing law beyond any possibility for fair-minded disagreement.” Kubsch, 838
F.3d at 859 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).
“[A] state-court factual determination is not unreasonable merely because the
federal habeas court would have reached a different conclusion in the first

4

instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). For purposes of federal habeas
review, state-court factual determinations are entitled to “substantial deference.”
Brumfield v. Cain, 135 S. Ct. 2269, 2277 (2015). To obtain relief under § 2254(d)(2),
a petitioner must demonstrate that the state-court decision “rests upon fact-finding
that ignores the clear and convincing weight of the evidence.” McManus v. Neal, 779
F.3d 634, 649 (7th Cir. 2015) (quoting Goudy v. Basinger, 604 F.3d 394, 399 (7th
Cir. 2010)); see also 28 U.S.C. § 2254(e)(1). “The decision must be ‘so inadequately
supported by the record as to be arbitrary and therefore objectively unreasonable.’”
Alston v. Smith, 840 F.3d 363, 370 (7th Cir. 2016) (quoting Ward v. Sternes, 334
F.3d 696, 704 (7th Cir. 2003)).
When applying the above standards, federal courts look to “the ‘last reasoned
state-court decision’ to decide the merits of the case, even if the state’s supreme
court then denied discretionary review.” Dassey v. Dittmann, 877 F.3d 297, 302 (7th
Cir. 2017) (quoting Johnson v. Williams, 568 U.S. 289, 297 n.1 (2013)).
III.

Discussion
Mr. McDowell maintains that he is entitled to habeas relief because (1) he

was sentenced based on inaccurate information; and (2) a new factor entitles him to
a re-sentencing. The Respondent asserts that Mr. Meyers has failed to meet his
burden of proving that the Wisconsin Court of Appeals’ decision denying his writ of
habeas corpus is contrary to, or an unreasonable application of, clearly established
federal law.
1. Inaccurate Information

5

Mr. McDowell first argues that he should be granted habeas relief because he
was “sentenced based upon inaccurate information as presented by the district
attorney . . . at his sentencing hearing,” and that the state Court of Appeals’
decision affirming his conviction was an unreasonable application of federal law.
Pet’r’s Br. 5.
Under the Fourteenth Amendment, a criminal defendant has a constitutional
due process right to be sentenced based on accurate information. Townsend v.
Burke, 334 U.S. 736 (1948). Yet, not all inaccuracies deprive a defendant of due
process; the incorrect information must be materially untrue. Pollard, 628 F.3d at
888 (applying Townsend). To be entitled to resentencing, a defendant must
establish that the sentencing court actually relied on the critical inaccurate
information when announcing its sentence. Id. “A sentencing court demonstrates
actual reliance on misinformation when ‘the court gives explicit attention to it,
founds its sentence at least in part on it, or gives specific consideration to the
misinformation before imposing sentence’” Id. (citing Lechner v. Frank, 341 F.3d
635, 639 (7th Cir. 2013)).
At Mr. McDowell’s sentencing hearing, the district attorney presented instances
of domestic violence in Mr. McDowell’s past to the court. Specifically, the district
attorney introduced into evidence a statement from Jessica Panowitz, Mr.
McDowell’s ex-girlfriend, regarding a domestic violence incident that occurred
between them. See Resp. Br. 13. In a statement given to an officer of the Kenosha
Police Department, Ms. Panowitz conveyed that in 2012, an argument between her

6

and Mr. McDowell became violent. See Sentencing Transcript, ECF No. 8-7:24. She
stated that she kicked Mr. McDowell in the legs and he subsequently grabbed her
around the neck. Id. She also stated that Mr. McDowell pinned her down to the
concrete stairs with his right hand around her throat and left arm across her left
shoulder and forehead, and that he did not let go until she bit him. Id. at ECF No.
8-7:25.
The district attorney characterized this altercation as “something of a similar
nature” to the present case in which Mr. McDowell exercised force to the neck and
throat of the victim, who was also his girlfriend at the time. See Sentencing
Transcript, ECF No. 8-7:25. The district attorney tried to show that Mr. McDowell
“would have no compulsion about not [sic] using his physical prowess and his
strength and his size to go to the head/neck area of a human being albeit a female.”
Id. He argued that considering Mr. McDowell’s history of violence and the
circumstances surrounding “the heinous nature of this murder,” the court should
disregard the pre-sentence report recommendation of a nine to thirteen-year
sentence and impose not less than thirty years of incarceration regarding count one.
See Id. at ECF No. 8-7:29-31.
Mr. McDowell does not dispute that the domestic violence incident presented by
the district attorney happened, but rather complains that the trial court was not
given all of the relevant information regarding this incident. See Pet’r’s Br. 12.
Particularly, Mr. McDowell insists that it was he and not Ms. Panowitz who was the
victim of the altercation, and it was Ms. Panowitz who was ultimately convicted of

7

assault and battery as a result of the incident and fined $366. Id. at 7-8.
Additionally, Mr. McDowell states that he was the one to file a restraining order
against Ms. Panowitz. Id. at 8. Mr. McDowell argues that because these additional
facts are “nowhere in the record on appeal or before the trial court,” and the
sentencing court gave “explicit attention” to the incident as described by the district
attorney when determining his sentence, he was sentenced based on inaccurate
information and is thus entitled to resentencing. See Pet’r’s Br. 13-15.
In denying Mr. McDowell’s appeal, the Wisconsin Court of Appeals followed
State v. Tiepelman, which held that to be entitled to resentencing on the basis of
inaccurate information, a defendant must show that (1) inaccurate information was
before the court; and (2) the court actually relied on the inaccurate information in
the sentencing. 2006 WI 66, ¶9 (2006). This tracks the rule applied in Townsend.
Therefore, the Wisconsin Court of Appeals applied the correct rule, and its decision
is not “contrary to” federal law.
The Court of Appeals also applied the standard reasonably. After identifying the
correct standard, the Court of Appeals examined the record and concluded that Mr.
McDowell failed to establish that the information presented at sentencing
concerning the incident with Ms. Panowitz was inaccurate or incomplete, as Mr.
McDowell “does not point to any relevant omitted facts.” See Ct. of App. Decision 45. While Mr. McDowell insists that the information regarding Ms. Panowitz’s
conviction for assault on Mr. McDowell is relevant and was not presented at the
sentencing hearing, the record indicates that Ms. Panowitz’s statement to the trial

8

court included the fact that she was the one to receive a citation for this incident
and that she was served a temporary restraining order. See Ct. of Appeals Decision
4-5; see also Id. at n.3.
Because the information presented to the trial court was complete and accurate,
the Court of Appeals sensibly concluded that Mr. McDowell’s right to be sentenced
on the basis of accurate information was not violated. Mr. McDowell has failed to
establish that the Court of Appeals’ decision was an unreasonable application of
federal law and is therefore not entitled to relief on this claim. 1
2. New Factor
Mr. McDowell next argues that he should be granted habeas relief because “the
direct, sworn testimony of Dr. Soriano, which was not presented at the sentencing
hearing, is a new factor” entitling him to a resentencing. Pet. 13. Mr. McDowell
contends that the trial court relied upon Dr. Soriano’s report as to the cause of
death which, in addition to blunt head trauma, mentioned “other injuries,” but
unknowingly overlooked Dr. Soriano’s testimony at the preliminary hearing during
which he described the other injuries as “relatively minor injuries that could be
incurred during everyday living.” Pet’r’s Br. 16-18.
In an attempt to establish that Dr. Soriano’s testimony at the preliminary
hearing constitutes a “new factor” warranting resentencing, Mr. McDowell relies on

In his brief, Mr. McDowell also appears to argue that he was sentenced upon
inaccurate and incomplete information regarding the cause of death of the victim.
See Pet’r’s Br. 16-20. But, Mr. McDowell failed to exhaust this claim in state court
and is thus not entitled to relief. See Pet. 6-20; see also 28 U.S.C. § 2254(b)(1)(A).

1

9

Hayes v. State, a Wisconsin Supreme Court case that ruled that the trial court had
the power to modify sentence even after the service of the sentence had commenced.
46 Wis. 2d 93, 101 (1970); See Reply Brief 8-10, ECF No. 17.
Not only does Hayes not discuss the standard for modifying a sentence based on
a new factor, but Mr. McDowell does not cite to any Supreme Court precedent, or
federal constitutional provision, that does. See Hayes, 46 Wis. 2d at 101-103; see
also Reply Br. 8-10. As such, there is no federal constitutional challenge for this
Court to review. See 28 U.S.C. § 2254. Therefore, Mr. McDowell is not entitled to
relief on this claim pursuant to 2254(d)(1).
IV.

Conclusion
For the reasons abovementioned, this Court finds no basis upon which it may

properly find that Mr. McDowell is entitled to habeas relief based upon the claims
asserted in his Petition.
V.

Certificate of Appealability
There is one final matter to address. “The district court must issue or deny a

certificate of appealability when it enters a final order adverse to the [habeas]
applicant.” See Rule 11(a) of the Rules Governing Section 2254 Cases in the United
States District Courts. A district court may issue a certificate of appealability “only
if the applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2).
The Court finds that Mr. McDowell is not entitled to a certificate of
appealability. Mr. McDowell has not demonstrated “that jurists of reason could

10

disagree with the district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement
to proceed further.” See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack
v. McDaniel, 529 U.S. 473, 484 (2000)). Of course, Mr. McDowell has a right to seek
a certificate of appealability from the court of appeals. See Fed. R. App. P. 22(b).
NOW, THEREFORE, IT IS HEREBY ORDERED that Matthew A.
McDowell’s Petition for Writ of Habeas Corpus, ECF No. 1, is DENIED.
IT IS FURTHER ORDERED that this action is DISMISSED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
FINALLY, IT IS ORDERED that the Clerk of Court enter judgment
accordingly.
Dated at Milwaukee, Wisconsin, this 24th day of September, 2019.
BY THE COURT:
s/ David E. Jones
DAVID E. JONES
United States Magistrate Judge

11