Glover v. State of Wisconsin

Filing 32

ORDER DISMISSING CASE signed by Chief Judge Pamela Pepper on 7/13/2021. 24 Petitioner's filing CONSTRUED as brief in support of petition; 25 respondent's filing CONSTRUED as brief in opposition. Petitioner's §2254 habeas petition DISMISSED. The court DECLINES to issue certificate of appealability. Clerk of Court to UPDATE DOCKET to reflect that Nicholas Redeker is correct respondent. (cc: all counsel and mailed to Renaul Glover at John C. Burke Correctional Center)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

RENAUL E. GLOVER, SR.,
Petitioner,
v.

Case No. 18-cv-315-pp

NICHOLAS REDEKER,1
Respondent.

ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
(DKT. NO. 1), DISMISSING CASE AND DECLINING TO ISSUE
CERTIFICATE OF APPEALABILITY

On March 1, 2018, the petitioner, who is in custody at the John C.
Burke Correctional Center and who is representing himself, filed a petition for
writ of habeas corpus under 28 U.S.C. §2254 challenging his 2014 conviction
in Kenosha County Circuit Court for burglary, theft and bail jumping. Dkt. No.
1 at 1; see also State v. Glover, Kenosha County Case No. 13CF202 (available
at https://wcca.wicourts.gov). On July 24, 2019, the court overruled the
respondent’s objection to Judge Duffin’s report and recommendation, adopted
the report and recommendation, granted in part and denied in part the
respondent’s motion to dismiss the petition and set a briefing schedule for the

Rule 2(a) of the Rules Governing Section 2254 Cases in the United States
District Courts states that a petitioner who is in custody under a state-court
judgment must name as the respondent the officer who has custody. Because
the petitioner now is in custody at the John C. Burke Correctional Center, the
court has substituted the name of the warden of that facility, Nicholas Redeker,
as the respondent.
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petitioner’s remaining claim. Dkt. No. 21. The court’s briefing schedule
provided that
by the end of the day on Friday, August 30, 2019, the respondent
shall file a responsive pleading to Ground One. The court ORDERS
that the parties shall comply with the following schedule for filing
briefs on the merits of the petitioner’s claim:
(1) the petitioner has forty-five (45) days after he receives the
respondent’s answer to file a brief in support of his petition;
(2) the respondent has forty-five (45) days after the petitioner’s brief
is docketed to file the respondent’s brief in opposition; and
(3) the petitioner has thirty days (30) after he receives the
respondent’s opposition brief to file a reply brief, if the petitioner
chooses to file such a brief.
If, instead of filing an answer, the respondent files a dispositive
motion (such as a motion to dismiss the petition), the respondent
must include a brief and other relevant materials in support of the
motion. The petitioner then must file a brief in opposition to that
motion within forty-five (45) days of the date he receives the
respondent’s motion. If the respondent chooses to file a reply brief,
16 he must do so within thirty (30) days of the date the petitioner’s
opposition brief appears on the docket.
Id. at 15-16.
On August 28, 2019, the respondent filed an answer to the petition
under Rule 5 of the Rules Governing Section 2254 Cases. Dkt. No. 22. On
September 16, 2019, the court received from the petitioner a four-page
document titled “Reply To Respondent Answer To Habeas Corpus Petition.”
Dkt. No. 24. On October 31, 2019, the respondent filed a “Response Brief
Opposing Petition For Writ Of Habeas Corpus.” Dkt. No. 25.
This order construes Dkt. No. 24 as the petitioner’s brief in support of
his petition, construes Dkt. No. 25 as the respondent’s brief in opposition to
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the petition, denies the petition, dismisses the case and declines to issue a
certificate of appealability.
I.

Background
A.

State Case

The Wisconsin Court of Appeals recounted that the petitioner’s charges
arose out of reports of three burglaries in Kenosha throughout 2012. Dkt. No.
22-5 at 2-3. “On August 20, 2012, a witness reported seeing a man putting
items, including televisions, into the trunk of a ‘two-tone Buick or Cougar’ at
an address on 37th Avenue.” Id. at 2. An apartment owner at that address later
reported missing property. Id. “The witness and the owner located the
distinctive vehicle parked at a home on 60th Street, and the witness identified
[the petitioner] as the man he saw.” Id. “Police later recovered a fingerprint on
the rear outer door of the apartment building belonging to [the petitioner].” Id.
“The vehicle, a Buick with custom rims, was registered to a woman who police
identified as [the petitioner’s] live-in girlfriend.” Id. On November 20, 2012, a
homeowner on 31st Avenue reported property missing from his garage;
“[s]urveillance footage from the tavern across the street appeared to show the
burglary in the background, and a witness identified the car shown on the
video as the same Buick located at the home on 60th Street.” Id. Witnesses
E.S. and G.S. “later identified the man in the video as the same man they had
seen committing the burglary, identified by his lanyard, jacket, and hoodie.” Id.
On November 23, 2012, homeowners on Washington Road reported a
burglary. Id. at 3. Reported missing items included “[a] computer, engagement
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ring, watch, camera, money, an iphone, and Nike Jordan sneakers.” Id. Later
that day, Detective Keith Dumesic obtained and executed a warrant to search
the petitioner’s home. Id. at 3. During the search, officers recovered “[t]he
iphone, with pictures of the owner’s children, and the sneakers, identified
through glitter allegedly belonging to the owner’s young child.” Id. On February
21, 2013, the State of Wisconsin charged the petitioner with three counts of
burglary, three counts of theft and three counts of bail jumping. Id.; State v.
Glover, Kenosha County Case No. 13CF202 (available at https://wcca.
wicourts.gov). Detective Dumesic testified at trial that when executing the
warrant, officers were looking for “electronics, power tools” and “anything else
connected with a burglary.” Dkt. No. 22-5 at 3. During its closing argument,
the State asserted that
[The petitioner] can tell us that . . . Detective Dumesic is a liar. But
who has more to lose? If Detective Dumesic lies to you, he loses his
job. If [the petitioner] lies to you, he gets found not guilty.
Id. at 8.
On February 7, 2014, a Kenosha County jury returned verdicts of guilty
on all counts. Id. at 3; State v. Glover, Kenosha County Case No. 13CF0202
(available at https://wcca.wicourts.gov). The circuit court sentenced the
petitioner to thirteen years of initial confinement followed by six years of
extended supervision. Dkt. No. 22-5 at 3.

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B.

State Postconviction Proceedings

The petitioner filed a postconviction motion alleging ineffective assistance
of trial counsel. Id. The court denied the motion following a Machner2 hearing.
Id. at 3. The petitioner appealed, arguing that trial counsel performed
ineffectively for failing to (1) move to suppress evidence that officers recovered
from the petitioner’s home during the search, “as the search warrant was
insufficiently particular and officers exceeded its scope,” id. at 4; (2) object to
out-of-court identifications, id. at 7; and (3) object to the State’s closing
argument, id. at 8.
On August 9, 2017, the Wisconsin Court of Appeals affirmed the
petitioner’s convictions and the circuit court’s denial of postconviction relief. Id.
at 1. The court rejected the petitioner’s ineffective assistance claim based on
trial counsel’s failure to file a motion to suppress, concluding that trial
counsel’s decision was reasonable. Id. at 4-6. Finding neither deficient
performance nor prejudice to the petitioner, the court rejected the petitioner’s
claim that trial counsel’s failure to object to out-of-court identifications
constituted ineffective assistance. Id. at 7. The court noted that at the Machner
hearing, trial counsel explained that “he was not ‘sure that [E.S. and G.S.]
identified [the petitioner],’” and that “‘[t]hey provided descriptions of an

“A Machner hearing is an evidentiary hearing which may be held when a
criminal defendant’s trial counsel is challenged for allegedly providing
ineffective assistance.” Williams v. Grams, No. 06-C-215, 2006 WL 581202, *1
(E.D. Wis. Mar. 8, 2006) (citing State v. Machner, 92 Wis. 2d 797 (Ct. App.
1979)).
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individual . . . and a clothing description.’” Id. Trial counsel testified that “their
‘identification wasn’t great’ and that ‘there were inconsistencies,’ which he
strategically attempted to use for [the petitioner’s] advantage.” Id. Recalling
trial counsel’s conclusion that it “was better to have some confusion in front of
a jury than to try to keep certain information out,” the court stated that “[t]rial
counsel saw inconsistencies in the witnesses’ identifications as beneficial to
weaken their credibility.” Id. at 7-8. The court concluded that “[t]rial counsel’s
strategic decision not to challenge E.S.’s and G.S.’s identification was
reasonable under the circumstances.” Id. at 8.
The court also rejected the petitioner’s claim that trial counsel performed
ineffectively when he failed to object to the State’s closing argument. Id.
Characterizing trial counsel’s decisions to forgo the objection and a related
motion for a cautionary instruction as “purely strategic,” the court concluded
that “[s]trategic decisions made with full knowledge of the facts and law are
virtually unchallengeable,” and that those decisions did not provide a basis for
an ineffective assistance claim. Id. at 8-9 (citing Strickland v. Washington, 466
U.S. 668, 690-91 (1984)).
C.

Federal Habeas Petition (Dkt. No. 1)

On March 1, 2018, the petitioner filed this federal habeas petition. Dkt.
No. 1. The petitioner raised the same three issues that he had presented to the
Wisconsin Court of Appeals: Ground One asserted ineffective assistance of trial
counsel for failing to move to suppress the evidence that police recovered while
executing the search warrant; Ground Two asserted ineffective assistance of
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trial counsel for failing to move to suppress E.S. and G.S’s identifications; and
Ground Three asserted ineffective assistance of trial counsel for failing to object
to the State’s closing argument. Id. at 6-8. On March 9, 2018, Magistrate
Judge William Duffin screened the petition under Rule 4 of the Rules
Governing Section 2254 Cases, allowing the petitioner to proceed on each of
the claims. Dkt. No. 6.
D.

Respondent’s Motion to Dismiss the Petition (Dkt. No. 13)

On June 7, 2018, the respondent filed a motion to dismiss the petition
for procedural default. Dkt. No. 13. The respondent argued that the petitioner
never fairly presented his claims to the Wisconsin courts. Dkt. No. 14 at 3. The
respondent explained that when the petitioner litigated his ineffective
assistance of counsel claim related to the search warrant in state court, he did
so under the Fourth Amendment. Id. The respondent argued that the petitioner
failed to fairly present his other claims in his petition for review to the
Wisconsin Supreme Court. Id. Stating that the petitioner “acknowledged that
he did ‘not present these arguments as issues warranting review on their own,’”
the respondent concluded that the petitioner “did not develop an argument,
explain the operative facts, or provide the controlling legal principles”
underlying the claims. Id. The respondent stressed that the petitioner’s “entire
argument on those two claims consisted of three sentences.” Id.
E.

Judge Duffin’s Report and Recommendation (Dkt. No. 18)

On June 11, 2018, this court referred the respondent’s motion to dismiss
to Judge Duffin for a report and recommendation. Dkt. No. 15. Judge Duffin
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issued his report on January 9, 2019, recommending that this court partially
grant the motion to dismiss. Dkt. No. 18. He recommended that the court deny
the motion as to Ground One, finding that the petitioner fairly presented that
claim to the Wisconsin courts. Id. at 8. Conceding that the petition for review in
the Wisconsin Supreme Court “emphasized the alleged violation of [the
petitioner’s] rights under the Fourth Amendment” and did not cite the Sixth
Amendment, Judge Duffin concluded that “a reader familiar with criminal
appellate procedure (which would surely include any Wisconsin Supreme Court
justice) would have readily recognized from the petition for review that the
claim was being presented in the context of a claim of ineffective assistance of
counsel.” Id. at 5. He reasoned that the petition for review in the Wisconsin
Supreme Court mentioned that trial counsel did not file any motions to
suppress, and that “[a] knowledgeable reader would recognize that the only way
the court could reach a Fourth Amendment claim would be through the
gateway of a Sixth Amendment claim alleging ineffective assistance of counsel.”
Id. Judge Duffin also stressed that the petition for review described the
litigation of the petitioner’s ineffective assistance of counsel claims in the
Wisconsin Court of Appeals, and that the Wisconsin Supreme Court’s
awareness of the Machner hearing further alerted it to an ineffective assistance
of counsel issue. Id. at 5-6.
Judge Duffin “[could not] conclude the same with respect to the other
claims.” Id. at 8. While he agreed that a reference to ineffective assistance of
counsel constitutes an implication of the federal right, Judge Duffin found that
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the petitioner “failed to provide any factual basis for these claims.” Id. He
concluded that “[t]he Wisconsin Supreme Court would not have understood or
appreciated the nature of [the petitioner’s] latter two claims,” and that “[t]his
[fell] far short of ‘fair presentment.’” Id. Judge Duffin ruled that the petitioner
procedurally defaulted those claims, noting that the petitioner had not argued
that the court should excuse his procedural default. Id.
F.

Petitioner’s Response (Dkt. No. 19) and Respondent’s Objection
(Dkt. No. 20)

On January 18, 2019, the court received a one-page letter from the
petitioner. Dkt. No. 19. The letter stated:
PLEASE TAKE NOTICE, that the above said petitioner is hereby
responding to the court’s decision in Case No. 18-CV-315. The
petitioner is in full agreement with the court decision & order
regarding the fact that my trial counsel was ineffective for not filing
a requested motion to suppress.
However, I will be awaiting to hear from the respondents as to their
position on the court’s order. If this case is reversed and remanded
back to the circuit court of Kenosha county, the petitioner will be
requesting for the trial court to appoint counsel at county expense
pursuant to sections 977.08(1)-(5)-Stat. Until then, I will again await
to hear from this court and the respondents, as I thank you for your
time in this matter.
Id.
That same day, the respondent filed an objection to Judge Duffin’s report
and recommendation. Dkt. No. 20. The respondent objected only to Judge
Duffin’s recommendation regarding Ground One. Id. at 1. According to the
respondent, Judge Duffin (1) erroneously rejected the argument that the
petitioner “did not fairly alert the Wisconsin Supreme Court that he was raising
his Fourth Amendment claim through the ineffective assistance framework,”
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and (2) never addressed the argument that “passing references to this
ineffective assistance claim were not a fair presentment of the issue.” Id. at 3.
The respondent asserted that the petitioner had reformulated his claim from a
Sixth Amendment claim in the Court of Appeals to a Fourth Amendment claim
in the Wisconsin Supreme Court, then back to a Sixth Amendment claim in his
federal habeas petition. Id. at 5.
G.

Order Overruling Respondent’s Objection and Adopting Judge
Duffin’s Report and Recommendation (Dkt. No. 21)

On July 24, 2019, this court overruled the respondent’s objection,
adopted Judge Duffin’s report and recommendation, granted in part and
denied in part the motion to dismiss and set a briefing schedule. Dkt. No. 21.
The court concluded that the petitioner had fairly presented Ground One to the
Wisconsin courts. Id. at 9. The court noted that in its response to the petition
for review in the Wisconsin Supreme Court, the State had argued that the
petitioner was “not raising a Fourth Amendment claim but rather [was] raising
the narrower issue of whether his trial counsel provided ineffective assistance
by not making a Fourth Amendment claim.” Id. at 11 (citing dkt. no. 14-7 at 4).
The court observed that “federal and Wisconsin state courts have said that
‘[w]hen the claim of ineffective assistance is based on counsel’s failure to
present a motion to suppress, we have required that a defendant prove the
motion was meritorious.’” Id. at 12 (quoting United States v. Cieslowski, 410
F.3d 353, 360 (7th Cir. 2005); United States v. Stewart, 388 F.3d 1079, 1084
(7th Cir. 2005)). And, the court recalled, “[t]he petitioner lost his ineffective
assistance of counsel claim in the court of appeals because he could not show
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that the Fourth Amendment motion to suppress had merit, so he argued in his
petition for review that the Fourth Amendment did have merit.” Id. at 12-13. To
the court, “[t]his choice merely reflect[ed] the reality that a defendant cannot
prevail on an ineffective assistance of counsel [claim] without showing that he
had an underlying constitutional claim that would have been successful, had
his counsel raised it.” Id. at 13.
The court agreed with Judge Duffin that any Wisconsin Supreme Court
justice “would have readily recognized from the petition for review that the
claim was being presented in the context of a claim of ineffective assistance of
counsel.” Id. Acknowledging the respondent’s “repeated arguments” that the
petition for review raised Fourth Amendment claims in the context of a Sixth
Amendment claim, the court “[found] it disingenuous for the respondent to
argue that the Wisconsin Supreme Court would not have made the same,
obvious observation.” Id. The court found no clear error in Judge Duffin’s
conclusion that the petitioner procedurally defaulted his other claims, adopted
that conclusion and ordered Grounds Two and Three dismissed. Id. at 14-15.
H.

Briefing on the Merits
1.

Petitioner’s Reply to Respondent Answer to Habeas Corpus
Petition (Dkt. No. 24)

On September 16, 2019, the petitioner filed a document that the court
has construed as his brief in support of Ground One.3 Dkt. No. 24. The

The second sentence of the document states, “The petitioner would like to
enter this brief in support of his petition on the merits of ground one.” Dkt. No.
24 at 1.
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petitioner argues that “his Sixth Amendment right was violated by the way of
failure to present a critical Fourth Amendment violation.” Id. at 2. He contends
that the warrant on which officers relied to search his home failed to satisfy the
Fourth Amendment’s particularity requirement. Id. at 3. Stating that the
warrant’s use of “generic terms and general descriptions” was unconstitutional,
the petitioner argues that his attorney should have moved to suppress any
evidence recovered as a result of the warrant. Id. at 3-4. He argues that trial
counsel “had no reasonable strategy for not filing a motion to suppress and
was wrong to conclude the motion did not have merit.” Id. at 4. The petitioner
asserts that trial counsel could have questioned “[w]hether the State may argue
the applicability of good faith exception for the first time on appeal,” and
“[w]hether good faith exception may apply where a detective knew he had to
include specific information in a search war[a]nt, had specific information but
choose not to include it in a search war[a]nt he relied on to search defendant
home.” Id.
2.

Respondent’s Brief Opposing Petition (Dkt. No. 25)

The respondent argues that to obtain habeas relief, “[the petitioner]
needs to overcome three layers of deference.” Dkt. No. 25 at 7. He asserts that
the petitioner must show that (1) “the state appellate court’s decision went
‘beyond any possibility for fairminded disagreement,’” id. (citing Harrington v.
Richter, 562 U.S. 86, 103 (2011)); (2) “his trial lawyer’s decision not to file a
suppression motion was outside ‘the wide range of reasonable professional
assistance,’” id. at 7-8 (citing Strickland, 466 U.S. at 689); and (3) “the police
12

reliance on the search warrant was objectively unreasonable,” id. at 8 (citing
United States v. Leon, 468 U.S. 897, 922 (1984)). Putting it another way, the
respondent asserts that “[the petitioner] must show that (1) the state appellate
court unreasonably decided that (2) trial counsel could reasonably think that
(3) the police reasonably relied on the search warrant.” Id. at 9-10 (emphasis in
original).
The respondent concludes that “[t]he court of appeals reasonably
determined that trial counsel could reasonably think that the police reasonably
relied on the warrant.” Id. at 13. Finding it “relevant to all three layers of
deference,” the respondent argues that the Court of Appeals’ decision “was
correct because ‘a warrant need not be more specific than knowledge allows.’”
Id. at 11 (citing United States v. Bishop, 910 F.3d 335, 338 (7th Cir. 2018)).
The respondent contends that the Wisconsin Court of Appeals correctly applied
Leon when it found that the officers reasonably relied on the warrant; he
asserts that the court correctly applied Strickland when it concluded that trial
counsel reasonably chose not to file the motion to suppress evidence recovered
during the search. Id. at 12-13.
The respondent maintains that the petitioner’s claim is undeveloped. Id.
at 15. Stating that the petitioner “has not even tried to develop an argument on
the prejudice prong of Strickland,” the respondent asserts that “[t]his failing
alone is a sufficient reason for denying him federal habeas relief.” Id.
Addressing the prejudice prong of Strickland himself, the respondent states
that it is “inconceivable how the evidence in question could have affected the
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jury’s verdicts.” Id. He reasons that “[w]hile searching [the petitioner’s] home,
police found items that had been stolen in the third burglary,” and that
therefore, it is “difficult to imagine how that evidence could have affected the
verdicts related to the first two burglaries.” Id.
II.

Analysis
A.

Standard

Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a federal court may grant habeas relief only if the state court
decision was “either (1) ‘contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the
United States,’ or (2) ‘based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.’” Miller v. Smith,
765 F.3d 754, 759-60 (7th Cir. 2014) (quoting 28 U.S.C. §2254(d)(1), (2)). A
federal habeas court reviews the decision 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).
“‘[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.’”
Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Williams v. Taylor, 529 U.S.
362, 410 (2000)). Indeed, “[t]he ‘unreasonable application’ clause requires the
state court decision to be more than incorrect or erroneous. The state court’s
application of clearly established law must be objectively unreasonable.”
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Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (emphasis added). In other words,
§2254(d)(1) allows a court to grant habeas relief only where it determines that
the state court applied federal law in an “objectively unreasonable” way.
Renico, 559 U.S. at 773. “A state court’s determination that a claim lacks merit
precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on
the correctness of the state court’s decision.” Harrington, 562 U.S. at 102
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). “The standard
under §2254(d) is ‘difficult to meet’ and ‘highly deferential.’” Saxon v.
Lashbrook, 873 F.3d 982, 987 (7th Cir. 2017) (quoting Cullen v. Pinholster,
563 U.S. 170, 181 (2011)).
B.

Ineffective Assistance of Counsel

“Under Strickland v. Washington’s familiar, two-pronged test for
ineffective assistance of counsel, [the petitioner] must demonstrate that (1) his
counsel’s performance was deficient; and (2) that deficiency resulted in
prejudice.” United States v. Berg, 714 F.3d 490, 496-97 (7th Cir. 2013) (citing
Strickland, 466 U.S. at 687). “The performance prong of Strickland requires a
[petitioner] to show ‘that counsel’s representation fell below an objective
standard of reasonableness.’” Lafler v. Cooper, 566 U.S. 156, 163 (2012)
(quoting Hill v. Lockhart, 474 U.S. 52, 57 (1985)). “The question is whether an
attorney’s representation amounted to incompetence under ‘prevailing
professional norms,’ not whether it deviated from best practices or most
common custom.” Harrington, 562 U.S. at 105 (quoting Strickland, 466 U.S. at
690). “To establish Strickland prejudice a defendant must ‘show that there is a
15

reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.’” Lafler, 566 U.S. at 163 (quoting
Strickland, 466 U.S. at 694).
Establishing that a state court’s application of Strickland was
unreasonable under § 2254 is all the more difficult. The standards
created by Strickland and § 2254(d) are both “highly deferential”,
and when the two apply in tandem, review is “doubly” so. The
Strickland standard is a general one, so the range of reasonable
applications is substantial. Federal habeas courts must guard
against the danger of equating unreasonableness under Strickland
with unreasonableness under § 2254(d). When § 2254(d) applies,
the question is not whether counsel’s actions were reasonable. The
question is whether there is any reasonable argument that counsel
satisfied Strickland’s deferential standard.
Harrington, 562 U.S. at 105 (internal citations and quotations omitted).
The petitioner contends that his trial counsel was ineffective for failing to
file a motion to suppress evidence that officers recovered from his home while
executing an allegedly improper search warrant; he maintains that his trial
counsel “had no reasonable strategy for not filing a motion to suppress and
was wrong to conclude the motion did not have merit.” Dkt. No. 24 at 4. “‘To
avoid the inevitable temptation to evaluate a lawyer’s performance through the
distorting lens of hindsight, Strickland establishes a deferential presumption
that strategic judgments made by defense counsel are reasonable.’” Jones v.
Calloway, 842 F.3d 454, 464 (7th Cir. 2016) (quoting Mosley v. Atchinson, 689
F.3d 838, 848 (7th Cir. 2012).
The Wisconsin Court of Appeals reviewed trial counsel’s testimony at the
Machner hearing. Dkt. No. 22-5 at 5. During that hearing, “trial counsel
testified he that he did not file a motion to suppress because he ‘didn’t think it
16

was a valid motion,’ specifically that he didn’t believe the motion would be
successful on the merits.” Id. The court recounted the law controlling the good
faith exception in Wisconsin courts:
We apply the good faith exception where “the officers conducting an
illegal search ‘acted in the objectively reasonable belief that their
conduct did not violate the Fourth Amendment.’” State v.
Dearborn, . . . 327 Wis. 2d 252, 786 . . . (quoting United States v.
Leon, 468 U.S. 897, 918 (1984)). Where officers act in accordance
with a search warrant, we apply the good faith exception if (1)
“officers conducted a significant investigation prior to obtaining the
warrant,” (2) “the affidavit supporting the warrant was reviewed by
either a police officer trained and knowledgeable in the requirements
of probable cause and reasonable suspicion, or a knowledgeable
government attorney,” and (3) “a reasonably well-trained officer
would have known that the search was illegal despite the
magistrate’s authorization, rendering the officers’ reliance on the
warrant unreasonable.” State v. Scull, . . . 361 Wis. 2d 288 . . .
Id.
The Court of Appeals concluded that “trial counsel’s decision not to file a
motion to suppress was not deficient performance as it was reasonable to
conclude that the circuit court would have applied the good faith exception to
the exclusionary rule to deny the motion.” Id. It reasoned that in his trial
testimony, Detective Dumesic (1) “outlined the significant investigation used to
narrow in on [the petitioner] as the suspect through surveillance footage,
photographs, and personal interviews,” (2) explained that he “identified the
distinctive Buick seen in the surveillance footage from the tavern, learned from
another officer that [the petitioner] had been regularly seen driving the Buick,
and met with E.S. and G.S. who said that [the petitioner] looked like the
burglar,” (3) stated that “he had prepared about sixty or so search warrants
during his twenty-two year career,” and (4) stated that “the affidavit properly
17

sought to establish probable cause through a discussion of the investigation
into the November 20 burglary and other burglaries in which he suspected [the
petitioner’s] involvement.” Id. at 6.
Concluding that officers reasonably relied on the search warrant, the
court held that “[u]nder the circumstances, the warrant was not so facially
deficient that an officer could not reasonably rely on its validity.” Id. (citing
State v. Marquardt, 286 Wis. 2d 204, 215 (2005)). The court noted that “[a]t the
time Dumesic drafted the warrant, he suspected that [the petitioner] was
involved in approximately fourteen burglaries, in which some homes had more
than forty-five items stolen.” Id. It recalled Dumesic’s testimony that “he did
not ‘think there was any realistic way to literally list all the items, especially
since some of the people didn’t have the serial numbers or even know the
brand name of the items that were stolen.’” Id. The court found that trial
counsel’s performance was not deficient, stating that “a reasonable attorney
could have concluded that a motion to suppress the evidence recovered under
the search warrant was not meritorious.” Id.
The Court of Appeals’ conclusion fell within the bounds of
reasonableness as §2254(d) requires. The petitioner’s trial counsel exercised
strategic judgment in his choice not to file a motion to suppress particular
evidence; his testimony at the Machner hearing reflected his belief that filing
the motion would have been unsuccessful. Id. at 5. “Failure to raise a losing
argument or pursue a futile motion to suppress does not constitute ineffective
assistance.” Perez v. U.S., 286 F. Appx. 328 (7th Cir. 2008) (citing Whitehead v.
18

Cowan, 263 F.3d 708, 731 (7th Cir. 2001); United States v. Jackson, 103 F.3d
561, 575 (7th Cir. 1996)). That trial counsel’s strategy did not result in an
acquittal does not render the decision less strategic. Harrington, 562 U.S. at
109 (“the prosecution’s response shows merely that the defense strategy did
not work out as well as counsel had hoped, not that counsel was
incompetent.”). Given Dumesic’s testimony regarding the investigation and the
potential application of the good faith exception to the exclusionary rule, trial
counsel’s conclusion that the motion to suppress would have been
unsuccessful was reasonable.
Because trial counsel’s decision not file a motion to suppress the
evidence that officers obtained while executing the search warrant was a
matter of reasonable trial strategy and such decisions are “virtually
unchallengeable on appeal,” Strickland, 466 U.S. at 690, the Wisconsin Court
of Appeals did not unreasonably apply Strickland.
III.

Certificate of Appealability
Under Rule 11(a) of the Rules Governing Section 2254 Cases, the court

must consider whether to issue a certificate of appealability. A court may issue
a certificate of appealability only if the applicant makes a substantial showing
of the denial of a constitutional right. See 28 U.S.C. §2253(c)(2). The standard
for making a “substantial showing” is whether “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
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(2000) (internal quotations omitted). The court declines to issue a certificate of
appealability, because reasonable jurists could not debate whether the
petitioner’s claims warrant habeas relief under 28 U.S.C. §2254(d).
IV.

Conclusion
The court CONSTRUES the petitioner’s filing at Dkt. No. 24 as a brief in

support of the petition.
The court CONSTRUES the respondent’s filing at Dkt. No. 25 as a brief
in opposition to the petition.
The court DISMISSES the petitioner’s petition for writ of habeas corpus
under 28 U.S.C. §2254.
The court ORDERS that this case is DISMISSED. The clerk will enter
judgment accordingly.
The court DECLINES TO ISSUE a certificate of appealability.
Dated in Milwaukee, Wisconsin this 13th day of July, 2021.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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