Sanders v. Foster
Filing
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DECISION AND ORDER signed by Magistrate Judge Nancy Joseph. IT IS ORDERED that Sanders' 5 amended petition for a writ of habeas corpus is DENIED. IT IS FURTHER ORDERED that a certificate of appealability shall not issue. IT IS FURTHER ORDERED that this action be and hereby is DISMISSED. IT IS FURTHER ORDERED that the Clerk of Court enter judgment accordingly. (cc: all counsel, via US mail to Petitioner)(blr)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
QUORDALIS V. SANDERS,
Petitioner,
v.
Case No. 18-CV-628
BRIAN FOSTER,
Respondent.
DECISION AND ORDER
_____________________________________________________________________________
Quordalis V. Sanders, a prisoner in Wisconsin custody, seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Sanders was convicted of exposing his genitals to a child,
disorderly conduct, causing a child to view sexually explicit conduct, and stalking, all as a
repeat offender. He was sentenced to two years of imprisonment and three years of extended
supervision. Sanders contends that his conviction and sentence are unconstitutional. For the
reasons stated below, the petition for a writ of habeas corpus will be denied and the case
dismissed.
BACKGROUND
In December 2013, Sanders was charged in Racine County with exposing his genitals
to a child, disorderly conduct, causing a child to view sexually explicit conduct, and stalking,
all as a repeat offender. (Docket # 26-2.) The charges stemmed from repeated complaints by
the teenaged victim, E.M., who testified that Sanders would park outside the restaurant where
she worked and watch her, and twice exposed himself and engaged in lewd behavior while
watching her. (Trial Day Two Transcript at 20–36, Docket # 35-1 at 19–35.)
Following a two-day jury trial, Sanders was found guilty on all counts and sentenced
to five years, consisting of two years of imprisonment and three years of extended supervision.
(Docket # 26-2.) Sanders filed a postconviction motion arguing ineffective assistance of
counsel, and a Machner hearing was held. (Docket # 32-9.) Counsel for Sanders filed a nomerit brief in the court of appeals (Docket # 26-3), to which Sanders responded (Docket #
26-4). On August 30, 2017, the court of appeals summarily affirmed the judgment of
conviction. (Docket # 5-1 at 1–9.) The court denied Sanders’ motion for reconsideration on
June 2, 1017. (Docket # 5-1 at 12.) The Wisconsin Supreme Court denied review on February
13, 2018. (Docket # 5-1 at 10.) On June 2, 2017 Sanders repeated his arguments in a petition
for writ of habeas corpus in the court of appeals (Docket # 26-6), which was dismissed on
September 29, 2017 for failure to serve process (Docket # 5-1 at 17).
Sanders filed a petition for a writ of habeas corpus in this court on April 19, 2018
(Docket # 1), and an amended petition on May 21, 2018 (Docket # 5).
STANDARD OF REVIEW
Sanders’ petition is governed by the Antiterrorism and Effective Death Penalty Act
(“AEDPA”). Under AEDPA, a writ of habeas corpus may be granted if the state court
decision on the merits of the petitioner’s claim (1) was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States,” 28 U.S.C. § 2254(d)(1); or (2) “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding,” 28
U.S.C. § 2254(d)(2).
A state court’s decision is “contrary to . . . clearly established Federal law as established
by the United States Supreme Court” if it is “substantially different from relevant [Supreme
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Court] precedent.” Washington v. Smith, 219 F.3d 620, 628 (7th Cir. 2000) (quoting Williams
v. Taylor, 529 U.S. 362, 405 (2000)). The court of appeals for this circuit recognized the narrow
application of the “contrary to” clause:
[U]nder the “contrary to” clause of § 2254(d)(1), [a court] could grant a writ of
habeas corpus . . . where the state court applied a rule that contradicts the
governing law as expounded in Supreme Court cases or where the state court
confronts facts materially indistinguishable from a Supreme Court case and
nevertheless arrives at a different result.
Washington, 219 F.3d at 628. The court further explained that the “unreasonable application
of” clause was broader and “allows a federal habeas court to grant habeas relief whenever the
state court ‘unreasonably applied [a clearly established] principle to the facts of the prisoner’s
case.’” Id. (quoting Williams, 529 U.S. at 413).
To be unreasonable, a state court ruling must be more than simply “erroneous” and
perhaps more than “clearly erroneous.” Hennon v. Cooper, 109 F.3d 330, 334 (7th Cir. 1997).
Under the “unreasonableness” standard, a state court’s decision will stand “if it is one of
several equally plausible outcomes.” Hall v. Washington, 106 F.3d 742, 748–49 (7th Cir. 1997).
In Morgan v. Krenke, the court explained that:
Unreasonableness is judged by an objective standard, and under the
“unreasonable application” clause, “a federal habeas court may not issue the
writ simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law erroneously
or incorrectly. Rather, that application must also be unreasonable.”
232 F.3d 562, 565–66 (7th Cir. 2000) (quoting Williams, 529 U.S. at 411), cert. denied, 532 U.S.
951 (2001). Accordingly, before a court may issue a writ of habeas corpus, it must determine
that the state court decision was both incorrect and unreasonable. Washington, 219 F.3d at
627.
Habeas relief is available only for state court decisions that are contrary to federal law.
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This court may not review whether a state court properly applied its own state laws. Estelle v.
McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions.”).
ANALYSIS
Sanders’ amended petition argues that he is entitled to a writ of habeas corpus on
multiple grounds, including bias of the magistrate who issued his arrest warrant (Docket # 5
at 6), lack of probable cause for the arrest warrant (id. at 6–7), vindictive prosecution and
prosecutorial misconduct (id. at 7–8), insufficiency of the evidence (id. at 8–9), and ineffective
assistance of trial and appellate counsel (id. at 9).
1.
Procedural Default
Most of Sanders’ claims have been procedurally defaulted for failure to exhaust at the
state level. A federal court may not entertain a petition from a prisoner in state custody unless
the petitioner has exhausted available state remedies prior to seeking federal habeas relief. See
28 U.S.C. § 2254(b); Malone v. Walls, 538 F.3d 744, 753 (7th Cir. 2008). “This so-called
exhaustion-of-state-remedies doctrine serves the interests of federal-state comity by giving
states the first opportunity to address and correct alleged violations of a petitioner’s federal
rights.” Lieberman v. Thomas, 505 F.3d 665, 669 (7th Cir. 2007). Inherent in the habeas
petitioner’s obligation to exhaust his state court remedies before seeking relief in habeas
corpus is the duty to fairly present his federal claims to the state courts. Lewis v. Sternes, 390
F.3d 1019, 1025 (7th Cir. 2004). For a constitutional claim to be fairly presented to a state
court, both the operative facts and the controlling legal principles must be submitted to that
court. Verdin v. O’Leary, 972 F.2d 1467, 1474 (7th Cir. 1992). Whether a petitioner has done
so depends on several factors, including: (1) whether the petitioner relied on federal cases that
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engage in constitutional analysis; (2) whether the petitioner relied on state cases which apply
a constitutional analysis to similar facts; (3) whether the petitioner framed the claim in terms
so particular as to call to mind a specific constitutional right; and (4) whether the petitioner
alleged a pattern of facts that is well within the mainstream of constitutional litigation.
Sweeney v. Carter, 361 F.3d 327, 332 (7th Cir. 2004) (internal quotation and citation omitted).
Sanders’ briefs are difficult to follow, but construing his appellate brief as liberally as
possible, Sanders appears to have presented three arguments to the court of appeals: (1)
ineffective assistance of trial counsel for failing to request a jury instruction on other-acts
evidence or moving to sever the stalking charge (Docket # 26-4 at 7–9); (2) ineffective
assistance of appellate counsel for failing to file a Notice of Appeal and instead filing a nomerit report (id. at 9); and (3) insufficiency of the evidence on the stalking charge (id. at 10–
11). On this record, Sanders’ challenge to the warrant (Ground One) and claims of vindictive
prosecution and prosecutorial misconduct (Ground Two) are procedurally defaulted. In his
reply, Sanders appears to argue that the default should be excused due to ineffectiveness of
counsel and actual innocence. (Docket # 37 at 2.) However, Sanders does not develop this
argument. It is also worth noting that even if Sanders had presented his Fourth Amendment
challenge to the state court, the claims would have been barred by Stone v. Powell, 428 U.S.
465 (1976.) Thus, I conclude that he has procedurally defaulted these claims and is barred
from raising them here. 1
2.
Ineffective Assistance of Counsel
Sanders argues that his trial counsel was ineffective for (1) failing to file a pretrial
Sanders also argues that the Respondent’s brief was untimely filed, objecting to several extensions of
time Respondent requested and this court granted. (Id. at 2–3.) Having reviewed the docket, I do not
find the Respondent’s brief untimely. The Respondent’s brief was finally due February 22, 2019
(Docket # 34), and that is the date Respondent submitted it (Docket # 36).
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motion objecting to the multiplicity of the charges, (2) failing to move to sever the stalking
charge due to the other-acts evidence it involved, and (3) failure to request the cautionary
instruction to the jury regarding such other-acts evidence. (Docket # 5 at 9.) Sanders also
argues that appellate counsel was ineffective for failing to raise the issues of multiplicity and
sufficiency of the evidence rather than filing a no-merit report. (Id.) Because Sanders appears
not to have raised his claim of ineffective assistance of appellate counsel for failing to argue
multiplicity in state proceedings, he is procedurally barred from doing so here, and I will
address only the ineffective assistance of trial counsel claims.
The clearly established Supreme Court precedent for ineffective assistance of counsel
is set forth in Strickland v. Washington, 466 U.S. 668 (1984). To establish ineffective assistance
of counsel, Sanders must show both “that counsel’s performance was deficient” and “that the
deficient performance prejudiced the defense.” Id. at 687. To satisfy Strickland’s performance
prong, the defendant must identify “acts or omissions of counsel that could not be the result
of professional judgment.” United States ex rel. Thomas v. O’Leary, 856 F.2d 1011, 1015 (7th
Cir. 1988) (citing Strickland, 466 U.S. at 690). “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 v. Richter, 131 S. Ct. 770,
788 (2011) (quoting Strickland, 466 U.S. at 689). A reviewing court must seek to “evaluate the
conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689. We “must indulge
a strong presumption that counsel’s conduct falls within a wide range of reasonable
professional assistance,” id., and “strategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually unchallengeable,” id. at 690.
To establish prejudice, it is “not enough for the defendant to show that his counsel’s
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errors had some conceivable effect on the outcome of the [trial].” Hough v. Anderson, 272 F.3d
878, 891 (7th Cir. 2001). A petitioner must show “that there is a reasonable probability that,
but for counsel’s errors, the result of the [trial] would have been different.” Strickland, 466
U.S. at 694. This does not mean that the defendant must show that “counsel’s deficient
conduct more likely than not altered the outcome in the case.” Id. at 693. Rather, a
“reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Id. at 694. Making this probability determination requires consideration of the totality of the
evidence before the jury. Id. at 695. A “verdict or conclusion only weakly supported by the
record is more likely to have been affected by errors than one with overwhelming record
support.” Id. at 696.
A court deciding an ineffective assistance claim need not approach the inquiry “in the
same order or even to address both components of the inquiry if the defendant makes an
insufficient showing on one.” Id. at 697. “[A] court need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by the defendant as a result
of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s
performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that course should be followed. Courts
should strive to ensure that ineffectiveness claims not become so burdensome to defense
counsel that the entire criminal justice system suffers as a result.” Id.
In this case, Sanders alleges that trial counsel was deficient in her handling of evidence
of a 2010 incident with the same victim. (Docket # 5 at 9.) Sanders argues that counsel ought
to have objected to admission of that evidence, insisted on a cautionary instruction to the jury
about the use of that evidence, and tried to sever the stalking charge from the other charges
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to avoid putting that incident before the jury. (Id.)
The court of appeals noted that, at the Machner hearing, trial counsel testified that she
had not requested the cautionary instruction because she had not wanted to draw the jury’s
attention to the earlier incident. (Docket # 5-1 at 4; Hearing Transcript at 6, Docket # 32-9.)
She also stated that she had not sought to sever the stalking charge because the judge would
have denied it as the evidence was admissible on the other counts. (Docket # 5-1 at 4; Hearing
Transcript at 6–7, Docket # 32-9.) The court of appeals upheld the trial court’s determination
that counsel had not acted deficiently, because counsel advanced a logical strategic reason for
failing to request the cautionary instruction and for failing to seek severance of the stalking
charge. (Docket # 5-1 at 7.) Sanders has not shown that this was contrary to or an
unreasonable application of Strickland; indeed, it is precisely the type of strategic decision this
court may not second-guess. Therefore, Sanders is not entitled to habeas relief on this ground.
3.
Insufficiency of the Evidence
Sanders argues that there was insufficient evidence to convict him of the stalking
charge. The Due Process Clause of the Fourteenth Amendment “protects the accused against
conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute
the crime for which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). When
insufficiency of evidence is asserted as the basis for a habeas petition, the petitioner must show
“‘upon the record evidence adduced at the trial no rational trier of fact could have found proof
beyond a reasonable doubt.’” Cabrera v Hinsley, 324 F.3d 527, 533 (7th Cir. 2003) (citing
Jackson v. Virginia, 443 U.S. 307, 319, 324 (1979)). The inquiry does not require the federal
habeas court to “ask itself whether it believes that the evidence at trial established guilt beyond
a reasonable doubt.” Jackson, 443 U.S. at 319 (citing Woodby v. INS, 385 U.S. 276, 282 (1966)).
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Instead, the relevant question is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Id.
A federal habeas court determines the sufficiency of the evidence in reference to the
substantive elements of the criminal offense as defined by state law. See id. at 324 n.16. Under
Wis. Stat. § 940.32(2)(a), stalking requires “intentionally engag[ing] in a course of conduct
directed at a specific person that would cause a reasonable person under the same
circumstances to suffer serious emotional distress or to fear bodily injury to or the death of
himself or herself or a member of his or her family or household.” The statute defines “course
of conduct” as “a series of 2 or more acts carried out over time, however short or long, that
show a continuity of purpose,” including any of the listed actions. Wis. Stat. § 940.32(1)(a).
Sanders argues that because the victim was temporarily out of state and at other times
not working at the restaurant between the initial exposure incident in 2010 and the later
incidents in 2013, there was no course of action showing continuity of purpose. (Docket # 5
at 8–9.) The court of appeals disagreed, holding that even if the court discounted any incident
prior to the “interruption,” there was sufficient evidence of two or more acts afterward to
support Sanders’ conviction. (Docket # 5-1 at 7–8.)
At trial, the victim testified that in August of 2013, she returned to work at the
restaurant after having worked elsewhere for a time. (Trial Day Two Transcript at 27, Docket
# 35-1 at 26.) She stated that she sometimes saw Sanders parked outside the restaurant,
watching her and moving his lips as though speaking to her. (Id. at 28.) She stated that when
this occurred, she would tell her boss, who would tell Sanders to leave. (Id. at 28–29.) She
called police to report Sanders’ disturbing behavior on November 19, 2013 and December 1,
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2013. (Id. at 29, 30.) She testified that on December 6, 2013, she again called the police
because Sanders exposed himself and engaged in lewd behavior directed toward her. (Id. at
31–32.) A recording of the 911 call was played in court. (Id. at 35–36.)
Based on this evidence, a rational jury could conclude that Sanders had engaged in a
continuous, purposeful course of conduct, consisting of two or more acts, to support his
conviction for stalking. Therefore, the court of appeals’ decision that the evidence was
sufficient to convict him was not unreasonable or contrary to Jackson, and Sanders is not
entitled to habeas relief on this claim.
CONCLUSION
To obtain habeas relief, Sanders must show that the state court’s decision was contrary
to or an unreasonable application of federal law. The court of appeals’ determination that
counsel was not deficient and that the evidence was sufficient to convict Sanders was not
contrary to or an unreasonable application of federal law. Sanders’ remaining claims are
procedurally defaulted. Accordingly, Sanders’ petition does not present any basis for relief
under 28 U.S.C. § 2254. The petition will be denied and this case dismissed.
CERTIFICATE OF APPEALABILITY
According to Rule 11(a) of the Rules Governing § 2254 Cases, the court must issue or
deny a certificate of appealability “when it enters a final order adverse to the applicant.” A
certificate of appealability may issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing
of the denial of a constitutional right, the petitioner must demonstrate that “reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have been resolved
in a different manner or that the issues presented were ‘adequate to deserve encouragement
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to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle,
463 U.S. 880, 893, and n.4).
When issues are resolved on procedural grounds, a certificate of appealability “should
issue when the prisoner shows, at least, that jurists of reason 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.” Id.
Each showing is a threshold inquiry; thus, the court need only address one component if that
particular showing will resolve the issue. Id. at 485.
Jurists of reason could not debate that Sanders fails to make a substantial showing of
the denial of a constitutional right. Thus, I will deny him a certificate of appealability. Of
course, Sanders retains the right to seek a certificate of appealability from the court of appeals
pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure.
ORDER
NOW, THEREFORE, IT IS ORDERED that Sanders’ amended petition for a writ
of habeas corpus (Docket # 5) is DENIED;
IT IS FURTHER ORDERED that a certificate of appealability shall not issue.
IT IS FURTHER ORDERED that this action be and hereby is DISMISSED;
IT IS FURTHER ORDERED that the Clerk of Court enter judgment accordingly.
Dated at Milwaukee, Wisconsin this 20th day of March, 2019.
BY THE COURT:
s/Nancy Joseph____________
NANCY JOSEPH
United States Magistrate Judge
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