Martinez v. Foster

Filing 49

ORDER DISMISSING CASE signed by Chief Judge Pamela Pepper on 10/18/2022. Petitioner's §2254 habeas petition DISMISSED. The court DECLINES to issue certificate of appealability. Case DISMISSED with prejudice. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

VINCENT MARTINEZ,
Petitioner,
v.

Case No. 18-cv-716-pp

CHRIS BUESGEN,1
Respondent.

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

On May 7, 2018, the petitioner, who is incarcerated at Stanley
Correctional Institution and is represented by counsel, filed a petition for writ
of habeas corpus under 28 U.S.C. §2254, challenging his 2013 revocation of
supervision. Dkt. No. 1. On September 30, 2019, the court adopted Magistrate
Judge William Duffin’s report and recommendation, granted in part and denied
in part the respondent’s motion to dismiss and ordered the respondent to
answer the petitioner’s remaining claims. Dkt. No. 29. The respondent
answered the petition, dkt. no. 30, the petitioner filed a brief in support of the

Rule 2(a) of the Rules Governing Section 2254 Cases in the United States
District Courts says that if someone is currently in custody under a state-court
judgment, “the petition must name as respondent the state officer who has
custody.” Because the petitioner is in custody at Stanley Correctional
Institution, the court has substituted warden Chris Buesgen as the
respondent.
1

1
Case 2:18-cv-00716-PP Filed 10/18/22 Page 1 of 34 Document 49

petition, dkt. no. 46, the respondent filed a brief in opposition, dkt. no. 47, the
petitioner filed a reply brief in support of the petition, dkt. no. 48.
Because the petitioner is not entitled to relief under 28 U.S.C. §2254, the
court will deny the petition and dismiss the case with prejudice.
I.

Background
A.

State Case
1.

Aggravated battery conviction

On February 26, 2003, the petitioner pled guilty in Washington County
Circuit Court to aggravated battery. Dkt. No. 1 at 2. Three months later, the
court sentenced the petitioner to three years and six months of initial
confinement followed by ten years of extended supervision. Id. On January 26,
2010, the petitioner was released on extended supervision with seven years
available for reconfinement. Dkt. No. 5-1 at 2.
2.

Revocation

In August 2013, the Wisconsin Department of Corrections initiated
revocation proceedings, alleging that the petitioner (1) pursued a relationship
with K.V. without prior agent approval; (2) failed to provide true and correct
information to his agent; (3) strangled K.V.; (4) beat K.V. to the point she
required eleven stitches to her face; (5) consumed alcohol; (6) punched C.J.; (7)
possessed a knife; and (8) called K.V. thirty times. Dkt. No. 5-1 at 1; Dkt. No.
30-5 at ¶2. At the October 8, 2013 revocation hearing, the petitioner appeared
in person with Attorney Katherine Romanowich. Dkt. No. 5-1 at 51. He
stipulated to the allegation that he had consumed alcohol. Id. at 54. In a
2
Case 2:18-cv-00716-PP Filed 10/18/22 Page 2 of 34 Document 49

written statement, the petitioner denied the remaining allegations. Dkt. No. 181 at 6. He claimed that he was ambushed, did not have a knife and did not
remember what happened. Id. He said that he was just friends with K.V., and
that while he wanted to date her, his “P.O. said no.” Id. He denied beating K.V.,
claiming that K.V. told him “she fell down her stairs when she was wearing
safety boots.” Id. at 7.
Neither victim K.V. nor male victim C.J. testified at the revocation
hearing. Division of Community Corrections Agent Jennifer Duffy-Juoni
testified that although the petitioner denied having a prior relationship with
K.V., K.V. told Duffy-Juoni that she had been in a relationship with the
petitioner. Dkt. No. 5-1 at 2. Duffy-Juoni explained that K.V. had provided a
written statement about her relationship with the petitioner, “including a
description of the incidents during which [the petitioner] strangled her,
punched her, and threatened her.” Id.
Fond du Lac Police Department Officer Kristi Meilahn testified that she
interviewed K.V. on August 4, 2013, during which K.V. claimed that the
petitioner “had threatened to kill her and her family and that she was very
afraid of him.” Id. Officer Meilahn testified that K.V. told her that the petitioner
“had called her 30 times that day and that he continued to text message her
after she told him to stop.” Id. As Administrative Law Judge Sally Pederson
(ALJ) recounted in her decision,
[K.V.] told Officer Meilahn that [the petitioner] then came to her
apartment, so she was scared and asked her friend [C.J.] to come
over. According to Officer Meilahn’s report, [K.V.] saw [the petitioner]
and [C.J.] fighting on the ground in the hallway of the apartment
3
Case 2:18-cv-00716-PP Filed 10/18/22 Page 3 of 34 Document 49

building and she saw a knife fall out of [the petitioner’s] pocket.
According to the police report, the police officers found [the
petitioner] in the alley behind the apartment building, and the
officer’s personal observation was that [the petitioner] was bleeding
and agitated. One of the police officers found the knife in a sewer
behind the apartment and a photograph of the knife is attached to
the police report. (Ex. 4) In a separate interview, [C.J.] told Officer
Meilahn that he came over to [K.V.’s] apartment because she asked
him to come because she was scared of her ex-boyfriend [the
petitioner] and that [the petitioner] attacked and punched him in the
hallway of the apartment building. (Ex 4)
Id. at 2-3.
Officer Meilahn added that “[K.V.] stated that [the petitioner] had beat
her up approximately four weeks earlier,” resulting in eleven stitches in K.V.’s
face. Id. at 3. “Officer Meilahn testified that she personally observed [K.V.] and
could still see scarring on [K.V.’s] cheek and eye area.” Id. She testified that she
obtained a medical release from K.V. before reviewing medical records reflecting
that K.V. received eleven stitches in her face on June 24, 2013. Id.
During Officer Meilahn’s testimony, Attorney Romanowich objected on
the grounds that Officer Meilahn provided impermissible double hearsay. Dkt.
No. 30-5 at ¶4. The ALJ overruled the objection, reasoning that hearsay was
admissible in revocation hearings, that no rule prohibited double hearsay and
that she ultimately would consider whether the double hearsay testimony had
sufficient indicia of reliability. Id. Without objection, the ALJ admitted into
evidence nine exhibits, including a Fond Du Lac Police Department report, the
petitioner’s written statement and K.V.’s written statement. Id. at ¶2.
Three weeks later, the ALJ revoked the petitioner’s extended supervision.
Dkt. No. 5-1 at 4. Stating that it was “not corroborated by any other evidence
4
Case 2:18-cv-00716-PP Filed 10/18/22 Page 4 of 34 Document 49

on the record,” the ALJ deemed the petitioner’s written statement “incredible.”
Id. at 2. On the other hand, the ALJ found Officer Meilahn’s testimony “credible
and reliable,” explaining that
[h]er testimony as to what she personally observed in the hospital
medical records is reliable, and there is no rational reason to doubt
the truthfulness of the medical record. Moreover, Officer Meilahn’s
personal observation of scarring on [K.V.’s] face and what Officer
Meilahn read in the hospital medical records corroborated [K.V.’s]
hearsay statements to the police officer and the agent about needing
stitches after being punched in the face by [the petitioner].
Id. at 3.
The ALJ concluded that, “[b]ased upon the record as a whole, and
particularly the evidence described above, I find that the Department met its
burden of proving by a preponderance of the credible evidence” that the
petitioner committed each of the disputed violations of his supervision. Id. The
ALJ found that the petitioner “physically assaulted [K.V.], requiring her to
receive 11 stitches to her face,” “punched [C.J.],” “possessed a knife,” “lied to
his agent about pursuing a relationship with [K.V.] and called and texted [K.V.]
repeatedly after she told him to stop.” Id. Stating that it was “the same type of
assaultive behavior that resulted in his conviction for aggravated battery,” the
ALJ found “confinement [was] necessary to protect the public from further
criminal activity by [the petitioner].” Id. Due to “the nature and severity of [the
petitioner’s] original offense, his institutional conduct record, his conduct and
behavior while on supervision, and the period of reincarceration needed to
protect the public from the risk of further criminal activity, to prevent
depreciation of the seriousness of the violations or to provide treatment in
5
Case 2:18-cv-00716-PP Filed 10/18/22 Page 5 of 34 Document 49

confinement,” the ALJ found that five years and two months of reincarceration
was “necessary and appropriate.” Id. at 4.
3.

State habeas petition

On July 11, 2014, the petitioner filed a petition for writ of habeas corpus
in the circuit court. Id. at 25. He argued that Attorney Romanowich had
provided ineffective assistance of counsel during the revocation proceedings
and that the ALJ had violated his due process rights. Id. at 26, 27. The
petitioner alleged that his lawyer failed to object (1) to hearsay testimony of a
police officer and the petitioner’s supervising agent; (2) that the ALJ did not
allow the petitioner to confront and cross-examine adverse witnesses; and (3) to
the ALJ’s failure to explicitly determine good cause for the victims’ failure to
appear and be subject to cross-examination. Id. at 38.
Finding that the petitioner had other adequate remedies at law, the
circuit court dismissed the habeas petition. Id. at 26-30. The court found that
even if the petitioner had no other adequate remedy at law, the petition lacked
merit. Id. at 28. It found the petitioner’s claim that Attorney Romanowich failed
to object to hearsay statements at the revocation hearing “not entirely correct,”
reasoning that she “did object on a hearsay basis to the ALJ’s consideration of
the St. Agnes Hospital records.” Id. at 29. And although the circuit court
observed that Attorney Romanowich had not objected to K.V.’s alleged
statements, it concluded “Wisconsin law is clear that a revocation decision may
be based entirely on hearsay as long as the hearsay is reliable.” Id. The court

6
Case 2:18-cv-00716-PP Filed 10/18/22 Page 6 of 34 Document 49

found that “it would have been fruitless for [Attorney Romanowich] to object to
the admission of the hearsay evidence given the position of the ALJ.” Id.
Regarding a good cause determination, the circuit court concluded that
“the good cause requirement is always met when the evidence offered in lieu of
an adverse witness’s live testimony would be admissible under the Wisconsin
rules of evidence.” Id. (citing State ex rel. Simpson v. Schwarz, 250 Wis. 2d 214,
229 (Wis. Ct. App. 2001)). The circuit court concluded that under Simpson,
“[t]he ALJ’s determination of reliability is implicitly a finding of trustworthiness
under the catchall hearsay exception.” Id. at 30. The court stated that
“Attorney Romanowich’s repeated challenge in her closing statement to the
reliability of the hearsay testimony, combined with her questioning of the
failure of [K.V.] to appear, establishe[d] that her representation was not
deficient under the circumstances of the revocation hearing.” Id.
4.

Appeal from dismissal of habeas petition

The petitioner appealed from the circuit court’s dismissal of his state
habeas petition. Dkt. No. 30-5. On appeal, he argued that Attorney
Romanowich had provided ineffective assistance at the revocation hearing
“because she did not object: (1) to the ‘hearsay testimony’ of [Officer Meilahn]
and [Agent Duffy-Juoni]; (2) on due process grounds that [the petitioner] was
unable to ‘confront and examine adverse witnesses’; and (3) to the ALJ’s ‘failure
to determine good cause’ for the victim’s and the male victim’s ‘failure to
appear and be subject to cross-examination.’” Id. at ¶10.

7
Case 2:18-cv-00716-PP Filed 10/18/22 Page 7 of 34 Document 49

As to his ineffective assistance claim, the Wisconsin Court of Appeals
concluded that the petitioner had not demonstrated “a reasonable probability
that the ALJ would have sustained the objections [the petitioner] claims
counsel should have made as well as a reasonable probability sustaining those
objections would have resulted in a different outcome.” Id. at ¶15. The
appellate court found that the petitioner had not explained—either to the
circuit court or to the Court of Appeals—how the failure to object had
prejudiced him. Id. The court observed that the petitioner had stipulated to one
violation of the conditions of supervision—consuming alcohol—and that that
violation alone provided a sufficient ground for revocation. Id. at ¶16. It
explained that hearsay is admissible at revocation hearings and that the
petitioner had acknowledged that the medical records were admissible. Id. at
¶17. And, the Court of Appeals noted, Romanowich had objected to the officer’s
testimony about medical information she’d received, arguing that it was
“double hearsay.” Id. Noting that the ALJ had overruled that objection, the
Court of Appeals saw “no reason to believe it is reasonably probable that had
counsel subsequently objected to the officer’s or agent’s testimony as to directly
reviewing the medical records, or objected to admission of the police reports,
the ALJ would have sustained the objection and prevented admission of the
evidence.” Id.
The Court of Appeals went into extensive detail about the evidence the
ALJ reviewed in concluding that the Officer Meilahn was credible and reliable.
Id. at ¶¶18-22. It discussed the officer’s testimony about seeing the scarring on
8
Case 2:18-cv-00716-PP Filed 10/18/22 Page 8 of 34 Document 49

the victim’s face, and her description of her first-hand observations of the
victim’s behavior on August 4, 2013 (the date of the incident). Id. at ¶24.
Regarding the petitioner’s assertion that his lawyer should have objected
to the inability to confront and cross-examine the victim and the male victim
and the ALJ’s alleged failure to find good cause for their lack of appearance at
the hearing, the Court of Appeals noted that the ALJ’s decision made a single
reference to the male victim, who said he came to the victim’s apartment
because she asked him to because she was afraid of the petitioner, and that
the petitioner had attacked and punched him in the apartment building
hallway. Id. at ¶26. The Court of Appeals found this statement “corroborative
of, and indeed largely cumulative to, a verbal statement the victim provided the
officer on August 4, as recorded in the officer’s report, and the victim’s August
8 written statement . . . .” Id. The appellate court concluded that there was no
basis for it to determine that “had the ALJ not considered the statement by the
male victim [the petitioner] would not have been revoked.” Id. It observed that
the ALJ had deemed the petitioner’s written statement (asserting that the male
victim was the aggressor) “incredible.” Id.
As for good cause, the Court of Appeals found that the ALJ had satisfied
the good cause standard by implicitly finding the evidence against the
petitioner to be trustworthy and finding credible the officer’s observation of the
female victim’s “extreme fear” of the petitioner. Id. at ¶27. The appellate court
did not believe that there was a “reasonable probability that had counsel
objected to the victim’s lack of appearance, the ALJ would not have explicitly
9
Case 2:18-cv-00716-PP Filed 10/18/22 Page 9 of 34 Document 49

stated a finding of good cause based upon the reliability of the evidence, as well
as the additional fact the agent had subpoenaed the victim to provide
testimony at the hearing and expected her to appear; she just did not do so.”
Id.
In sum, the Court of Appeals found that the petitioner had not
demonstrated a reasonable probability that the result of his revocation hearing
would have been different had his attorney made the objections he argued she
should have made. Id. at ¶28. Given that, the court found the petitioner could
not prove prejudice. Id.
5.

Petition for review

On May 15, 2017, the Wisconsin Supreme Court denied the petitioner’s
petition for review. Dkt. No. 30-8.
B.

Federal Habeas Petition

On May 7, 2018, the petitioner filed this federal habeas petition. Dkt. No.
1. The petition asserted four grounds for relief: (1) Attorney Romanowich
“provided ineffective assistance of counsel in failing to object to the hearsay
testimony of Officer Meilahn,” (2) Attorney Romanowich “provided ineffective
assistance of counsel by failing to object to the administrative law judge failure
to make a good cause determination for the witnesses [failure] to appear,” (3)
the ALJ erred by failing to “determine that the absent witnesses hearsay
statements were reliable,” and (4) “[the petitioner’s] extended supervision agent
failed to provide [the petitioner] with exculpatory evidence.” Dkt. No. 1 at 6-9.

10
Case 2:18-cv-00716-PP Filed 10/18/22 Page 10 of 34 Document 49

On May 29, 2018, Magistrate Judge William E. Duffin screened the petition
and allowed the petitioner to proceed on his claims. Dkt. No. 9.
On July 19, 2018, the respondent filed a motion to dismiss the petition.
Dkt. No. 14. The respondent argued that the petitioner’s ineffective assistance
of counsel claims were not cognizable on habeas review, dkt. no. 15 at 4, that
the petitioner had procedurally defaulted his claim that the ALJ erred, id. at 6,
and that the petitioner had not exhausted his exculpatory evidence claim, id. at
7. On January 11, 2019, Judge Duffin issued a report recommending that this
court grant in part and deny in part the respondent’s motion to dismiss. Dkt.
No. 20 at 11. Judge Duffin concluded that the petitioner had asserted
cognizable ineffective assistance of counsel claims. Id. at 4-5. He reasoned that
the petitioner had invoked the right to the effective assistance of counsel when
he sufficiently denied the allegations of his extended supervision violations. Id.
Judge Duffin recommended, however, that this court dismiss the petitioner’s
other claims as procedurally defaulted, reasoning that the Wisconsin Court of
Appeals had relied on an independent and adequate state law ground to reject
the petitioner’s claim that the ALJ erred in failing to make a good cause
finding, id. at 6-7, and that the petitioner failed to properly present to the state
courts his claim that his supervising agent failed to disclose exculpatory
evidence, id. at 9-10.
The petitioner did not object to Judge Duffin’s recommendations. Dkt.
No. 22. The respondent did object, disputing Judge Duffin’s conclusions that

11
Case 2:18-cv-00716-PP Filed 10/18/22 Page 11 of 34 Document 49

the petitioner’s ineffective assistance claims were cognizable on habeas review.
Dkt. No. 21.
On September 30, 2019, the court adopted Judge Duffin’s report and
recommendation in full and granted in part and denied in part the
respondent’s motion to dismiss. Dkt. No. 29. The court noted that neither party
had objected to the portion of Judge Duffin’s recommendation that analyzed
the petitioner’s third and fourth grounds for relief (the ALJ’s failure to
determine that the statements of the absent witness were reliable and the
petitioner’s argument that the supervising agent had failed to provide him
exculpatory evidence), found no clear error with Judge Duffin’s conclusions in
that regard and adopted his recommendations to dismiss the third and fourth
grounds. Id. at 10. The court overruled the respondent’s objection to Judge
Duffin’s recommendation that the court deny the motion to dismiss grounds
one and two—the ineffective assistance of counsel claims. Id. at 10-17. The
court ordered the respondent to answer the petitioner’s ineffective assistance of
counsel claims, finding that the petitioner’s written statement and Attorney
Romanowich’s conduct at the revocation hearing showed the petitioner
disputed the alleged violations of his extended supervision. Id. at 14-15, 20.
Three weeks later, the respondent answered the remaining claims. Dkt. No. 30.
On October 29, 2020, the petitioner filed a brief in support of his
petition. Dkt. No. 46. The petitioner—by this time represented by counsel—
indicated that he has
now narrowed down his claims to one claim of ineffective assistance
of counsel for failing to object to the violation of [the petitioner’s] 5th
12
Case 2:18-cv-00716-PP Filed 10/18/22 Page 12 of 34 Document 49

Amendment due process right to confront and cross-examine KV
and CJ, as well as not objecting to the ALJ’s failure to determine
good cause for both victim’s [sic] failure to appear and be subjected
to cross-examination prior to the admission of double hearsay
testimony provided by Meil[ah]n and Duff-Juoni.
Id. at 2. The petitioner claims that “the ALJ’s failure to a make a specific
finding of good cause for not allowing confrontation and cross-examination of
adverse witnesses requires automatic reversal of the ALJ’s decision to revoke
[the petitioner’s] E[xtended] S[upervision].” Id. The petitioner asserts that the
last state court to decide the petitioner’s claims—the Wisconsin Court of
Appeals—“unreasonably applied the Morrissey requirement2 to the facts” of his
case. Id. at 10. He also argues that the Court of Appeals based its decision on
an unreasonable determination of the facts when it concluded that the hearsay
statements of Meilahn and Duffy-Juoni would be admissible because they had
circumstantial guarantees of trustworthiness. Id. at 14. Finally, the petitioner
argues that the Court of Appeals unreasonably applied the prejudice prong of
Strickland v. Washington, 466 U.S. 668 (1984). Id. at 17.
Five weeks later, the respondent filed a brief in opposition to the petition.
Dkt. No. 47. The respondent argues that the petitioner has not demonstrated
that the Court of Appeals’ decision was not contrary to, nor did it involve an
unreasonable application of, Strickland. Id. at 1. He asserts that reliability and
good cause findings need not be explicit. Id. at 7. He maintains that if the

The petitioner provided neither the full title of the “Morrissey” case nor the
cite. The court assumes he means Morrissey v. Brewer, 408 U.S. 471 (1972),
which describes the due process requirements for parole revocation.
2

13
Case 2:18-cv-00716-PP Filed 10/18/22 Page 13 of 34 Document 49

hearsay evidence was reliable, its admission does not violate due process. Id.
The respondent recounted the Court of Appeals’ reasoning as to why the
petitioner could not show prejudice resulting from his lawyer’s failure to object
to Meilahn’s alleged “hearsay” testimony. Id. at 8-9. He recounted the appellate
court’s observation that counsel did object to some of the officer’s testimony on
hearsay grounds. Id. at 9. Similarly, the respondent recounted the appellate
court’s bases for finding that any objection to the ALJ’s failure to explicitly
state good cause for the victim’s failure to appear would not have impacted the
outcome of the case. Id. at 10-11.
As to the petitioner’s federal habeas arguments, the respondent argues
that the Court of Appeals’ analysis was consistent with Morrissey. Id. at 12-13.
He asserts that the petitioner’s second argument—that the ALJ’s decision to
revoke his supervision was based on an unreasonable determination of facts in
light of the evidence and the ALJ’s conclusion that the victim’s hearsay
statements to the officer and agent was corroborated by medical records—is
one of the claims that the court dismissed. Id. at 13. And he argues that the
Court of Appeals correctly applied the right standard—the Strickland
standard—and asserts that the petitioner misstates the applicable standard;
the respondent argues that the standard is not whether counsel’s allegedly
deficient performance undermined confidence in the outcome, but whether
there was a “reasonable probability” that but for the allegedly deficient
performance, the result of the hearing would have been different. Id. at 14.

14
Case 2:18-cv-00716-PP Filed 10/18/22 Page 14 of 34 Document 49

The petitioner filed a reply brief in support of the petition. Dkt. No. 48.
The petitioner relies heavily on the Wisconsin Court of Appeals’ decision in
Simpson, 250 Wis. 2d 214 in opposing the respondent’s arguments. Id. at 2-3.
He reiterates that the appellate court made an unreasonable determination of
the facts in light of the evidence, asserting that the hospital records
contradicted the victim’s version of events. Id. at 4-5. And he asserts that he
was prejudiced by his counsel’s deficient performance. Id. at 6-7.
II.

Analysis
A.

Standard

Under the Antiterrorism and Effective Death Penalty Act of 1996, 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, 75960 (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)). “The ‘unreasonable application’ clause requires the state
15
Case 2:18-cv-00716-PP Filed 10/18/22 Page 15 of 34 Document 49

court decision to be more than incorrect or erroneous. The state court’s
application of clearly established law must be objectively unreasonable.”
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 v. Richter, 562 U.S.
86, 102 (2011) (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
16
Case 2:18-cv-00716-PP Filed 10/18/22 Page 16 of 34 Document 49

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
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).
Again, the petitioner’s federal habeas petition originally asserted four
claims: (1) Attorney Romanowich “provided ineffective assistance of counsel in
failing to object to the hearsay testimony of Officer Meilahn,” (2) Attorney
Romanowich “provided ineffective assistance of counsel by failing to object to
the administrative law judge failure to make a good cause determination for the
witnesses [failure] to appear,” (3) the ALJ erred by failing to “determine that the
absent witnesses hearsay statements were reliable,” and (4) “[the petitioner’s]
extended supervision agent failed to provide [the petitioner] with exculpatory
evidence.” Dkt. No. 1 at 6-9. The court granted in part and denied in part the
respondent’s motion to dismiss, leaving only the petitioner’s first two grounds—
his ineffective assistance of counsel claims. Dkt. No. 29 at 19-20.
17
Case 2:18-cv-00716-PP Filed 10/18/22 Page 17 of 34 Document 49

In the brief in support of his petition, the petitioner states he
“has now narrowed down his claims to one claim of ineffective
assistance of counsel for failing to object to the violation of [his] 5th
Amendment due process right to confront and cross-examine KV
and CJ, as well as not objecting to the ALJ’s failure to determine
good cause for both victim’s [sic] failure to appear and be subjected
to cross-examination prior to the admission of double hearsay
testimony provided by Meil[ah]n and Duff-Juoni.”
Dkt. No. 46 at 2. He insists that he “will only pursue the ineffective assistance
of counsel claim specifically relating to Romanowich’s failure to object to
violations of [the petitioner’s] right to confrontation, as well as the failure to
object to the ALJ’s failure to determine good cause for not allowing
confrontation due to the lack of appearance of both KV and CJ.” Id. at 5.
But the petitioner’s “one” ineffective assistance of counsel claim consists
of three assertions of alleged errors in the Court of Appeals’ decision: he asserts
that the Court of Appeals (1) unreasonably applied Morrissey, 408 U.S. at 480,
id. at 10; (2) rendered a decision based on an unreasonable determination of
the facts in light of the evidence presented in the state court proceeding, id. at
14 and (3) unreasonably applied Strickland, id. at 17. None of these arguments
entitle the petitioner to habeas relief.
1.

Application of Morrissey

In his petition, the petitioner asserted at Ground One that Romanowich
was ineffective in failing to object to Meilahn’s hearsay testimony; specifically,
he asserted that Meilahn didn’t witness any of the events she testified to and
that she testified to statements she obtained from the victims. Dkt. No. 1 at 6.
Judge Duffin concluded that the petitioner had alleged sufficient facts to
18
Case 2:18-cv-00716-PP Filed 10/18/22 Page 18 of 34 Document 49

demonstrate that he was entitled to effective assistance of counsel at the
revocation hearing. Dkt. No. 20 at 5-6. This court agreed. Dkt. No. 29 at 15.
The question at this stage is whether the petitioner’s counsel was ineffective.
Given that question, it is confusing that although the petitioner’s first
argument in support of the petition is four pages long, it does not mention his
revocation counsel or ineffective assistance or Strickland. He does not argue
that the Court of Appeals unreasonably applied Strickland. The petitioner
begins by arguing that “the hearing officer ALJ never asserted grounds for
denying confrontation and failed to find good cause to deny confrontation of KV
and CJ and permit hearsay testimony,” citing Morrissey, 408 U.S. 471. Dkt.
No. 46 at 10. He spends several pages discussing how courts have interpreted
Morrissey’s due process requirements for parole revocation hearings. Id. at 1012. He then asserts that although the Court of Appeals “correctly identified
Morrissey as the controlling authority governing the analysis of this claim,”
(without identifying what he means by “this claim”), the Court of Appeals
“unreasonably refused to extend the principles established in Morrissey to a
contact where it should apply.” Id. at 12. The petitioner contends that the
Court of Appeals unreasonably applied Morrissey because the ALJ failed to
“weigh [the petitioner’s] constitutionally guaranteed right to confrontation
against the grounds asserted by the ALJ’s denying confrontation,” failed to
“state the reasons for denying [the petitioner’s] right to confront and crossexamine adverse witnesses” and failed to “make a specific finding of good
cause.” Id. at 13. The petitioner “posits that the ALJ’s decision to revoke his
19
Case 2:18-cv-00716-PP Filed 10/18/22 Page 19 of 34 Document 49

[extended supervision] should be reversed, not only on the basis of a lack of
good cause finding, but also the violation of due process rights to confrontation
and cross-examination when the ALJ permitted Officer Meil[ah]n and Agent
Duffy-Juoni to offer hearsay testimony regarding what KV told them because
[the petitioner] was prevented from exercising his rights pursuant to Morrissey
requirements.” Id. He then goes on to discuss whether the ALJ’s failure to find
good cause requires automatic reversal. Id. at 14.
These arguments criticize the administrative law judge, not the
petitioner’s revocation counsel. They address the petitioner’s Fifth Amendment
rights, not his Sixth Amendment right to counsel. In his reply brief, the
petitioner does mention his revocation lawyer. He asserts that Romanowich
failed to object that the ALJ violated his Fifth Amendment due process rights
“for not allowing confrontation and cross-examination of the alleged victims as
they failed to appear at the 10/08/2013 hearing.” Dkt. No. 48 at 1. Reading the
initial brief and the reply brief together, it appears that the petitioner is trying
to shoehorn his claim that the ALJ violated his Fifth Amendment rights into an
ineffective assistance claim by implying that had the Court of Appeals correctly
applied Morrissey, it would have granted relief on his ineffective assistance of
counsel claim. This tortured argument fails.
A federal habeas court “measure[s] a state prisoner’s habeas petition
against the last reasoned state-court decision on the merits.” Flint v. Carr, 10
F.4th 786, 796 (7th Cir. 2021). Here, that is the Wisconsin Court of Appeals’
decision affirming the denial of the state habeas petition. Although the
20
Case 2:18-cv-00716-PP Filed 10/18/22 Page 20 of 34 Document 49

petitioner spills much ink discussing how the administrative law judge erred at
the revocation hearing, this court is not measuring the habeas petition against
the administrative law judge’s decision. It measures the petition against the
Court of Appeals’ decision to determine whether that court’s decision was
contrary to, or involved an unreasonable application of, clearly established law
as determined by the U.S. Supreme Court, or was based on an unreasonable
determination of the facts in light of the evidence presented in state court.
The Court of Appeals discussed Morrissey in considering the petitioner’s
argument that “his counsel should have objected on procedural grounds to [the
petitioner’s] inability to confront and cross-examine the victim and the male
victim and the ALJ’s failure to find ‘good cause’ for their lack of appearance.”
Dkt. No. 30-5 at ¶25. It noted that under Simpson and Morrissey, a
probationer or parolee has the right to confront and cross-examine adverse
witnesses at a revocation hearing unless the hearing officer finds good cause
for not allowing confrontation. Id. It determined that it had “no basis” to
conclude “that had the ALJ not considered the statement by the male victim
[the petitioner] would not have been revoked.” Id. at ¶26. Id. It also stated that
it did not believe that there was a reasonable probability that had counsel
objected to the fact that the victim did not appear, the ALJ would not have
explicitly stated a finding of good cause, given both the reliability of the other
evidence and the fact that the agent had tried to get the victim to appear by
subpoenaing her. Id. at ¶27.

21
Case 2:18-cv-00716-PP Filed 10/18/22 Page 21 of 34 Document 49

This court must determine whether the Court of Appeals unreasonably
applied clearly established federal law in making those determinations—
whether its application of federal law was objectively unreasonable. The Court
of Appeals did not unreasonably apply clearly established federal law.
“[R]evocation of parole is not part of a criminal prosecution and thus the
full panoply of rights due a defendant in such a proceeding does not apply to
parole revocations.” Morrissey, 408 U.S. at 480. The Confrontation Clause of
the Sixth Amendment provides that in all criminal prosecutions, the accused
enjoys the right to be confronted with the witnesses against him. U.S. CONST.
amend. VI. In Crawford v. Washington, 541 U.S. 36, 68 (2004), the Supreme
Court held that for a court to admit testimonial hearsay in a criminal
prosecution, the Sixth Amendment requires that the declarant be unavailable
and the defendant have had a prior opportunity for cross-examination. “But
parole revocations are not criminal prosecutions for Sixth Amendment
purposes, so Crawford is inapplicable.” Schmanke v. Irvins, 207 F. App’x 655,
658 (7th Cir. 2006) (citing Kelley, 446 F.3d at 692; United States v. Hall, 419
F.3d 980, 985-86 (9th Cir. 2005)).
The fact that a revocation proceeding is not a criminal prosecution does
not mean that a parolee is not entitled to due process; termination of parole
“calls for some orderly process, however informal.” Morrissey, 408 U.S. at 482.
Due process, however, “is flexible and calls for such procedural protections as
the particular situation demands.” Id. at 481. The Morrissey Court described
the process due in a parole hearing, including a preliminary probable cause
22
Case 2:18-cv-00716-PP Filed 10/18/22 Page 22 of 34 Document 49

hearing before an independent hearing officer (and notice to the parolee of that
hearing) and a final revocation hearing at which the parolee has the
opportunity to be heard. Id. at 485-89. The process includes the “right to
confront and cross-examine adverse witnesses (unless the hearing officer
specifically finds good cause for not allowing confrontation).” Id. at 489.
The Seventh Circuit3 has interpreted that parenthetical phrase—“unless
the hearing officer specifically finds good cause for not allowing
confrontation”—as permitting “the admission of reliable hearsay at revocation
hearings without a specific showing of good cause.” United States v. Mosley,
759 F.3d 664, 667 (7th Cir. 2014) (quoting Kelley, 446 F.3d at 692); see also
Schmanke, 207 F. App’x at 658 (7th Cir. 2006) (citing Kelley, 446 F.3d at 692);
United States v. Pratt, 52 F.3d 671, 675 (7th Cir. 1995)). “Hearsay is reliable if
it ‘bears substantial guarantees of trust-worthiness.’” Mosley, 759 F.3d at 667
(quoting Kelley, 446 F.3d at 692). The Seventh Circuit “essentially treats a
finding of ‘substantial trustworthiness’ as the equivalent of a good cause

The petitioner relies heavily on Simpson, a 2001 Wisconsin Court of Appeals
case which held that an ALJ could not avoid making a good cause finding by
determining that other evidence is reliable. 250 Wis.2d at 224-25. On habeas
review, this court determines whether the Court of Appeals unreasonably
applied clearly established federal law. At the time the Wisconsin Court of
Appeals decided Simpson, “neither the U.S. nor the Wisconsin Supreme Court”
had provided guidance regarding the consequences of an ALJ’s failure to make
a specific finding of good cause. Id. at 224. Since then, the Seventh Circuit has
done so. Further, the Simpson court held that an ALJ’s failure to make a
specific good cause finding was subject to harmless error analysis, and
concluded that “the failure to make a specific finding of good cause is harmless
where good cause exists, its basis is found in the record, and its finding is
implicit in the ALJ’s ruling.” Id. at 225 (citations omitted).
3

23
Case 2:18-cv-00716-PP Filed 10/18/22 Page 23 of 34 Document 49

finding for the admission of hearsay.” Id. (quoting Kelley, 446 F.3d at 692). “If
the record so establishes, the admission of hearsay will ‘not undermine the
fundamental fairness of [a defendant’s] revocation hearing and [will] not violate
his right to due process.’” Id. (quoting Kelley, 446 F.3d at 693).
The Wisconsin Court of Appeals reviewed the petitioner’s assertion that
his counsel should have objected on procedural due process
grounds to [the petitioner’s] inability to confront and cross-examine
the victim and the male victim and the ALJ’s failure to find “good
cause” for their lack of appearance. See Simpson, 250 Wis. 2d 214,
¶12 (quoting Morrissey v. Brewer, 408 U.S. 471, 489 (1972)
(holding that at a revocation hearing, a probationer or parolee has
“the right to confront and cross-examine adverse witnesses (unless
the hearing examiner finds good cause for not allowing
confrontation)”)).
Dkt. No. 30-5 at ¶25.
Regarding male victim C.J., the Court of Appeals noted that “the ALJ’s
four-page decision makes only a one-sentence reference, based upon the
officer’s report, to any statement by him.” Id. at ¶26. The court found that
statement “corroborative of, and indeed largely cumulative to, a verbal
statement [K.V.] provided the officer on August 4, as recorded in the officer’s
report, and [C.J.’s] August 8 written statement, both of which indicate [K.V.]
asked [C.J.] to come over to her apartment because she was afraid of [the
petitioner] and that [the petitioner] and the [C.J.] were fighting.” Id. at ¶26.
According to the Court of Appeals, “[t]he only addition of consequence from
[C.J.’s] statement is that [the petitioner] clearly was the aggressor and
‘attacked’ [C.J.], which addition is consistent with [K.V.’s] seemingly excited
(‘hysterical’) utterance to dispatch on August 4 that ‘her ex-boyfriend, [the
24
Case 2:18-cv-00716-PP Filed 10/18/22 Page 24 of 34 Document 49

petitioner], was attacking her friend and that there was a knife involved.’” Id.
The court saw no basis to conclude that the ALJ would not have revoked the
petitioner’s supervision had the ALJ not considered C.J.’s statement, reasoning
that the ALJ found the petitioner’s written statement incredible, and the
petitioner’s “violent abuse of [K.V.] clearly appeared to weigh most heavily in
the ALJ’s revocation and reconfinement decision, as the bulk of the ALJ’s
decision focuses on [the petitioner’s] harm to and terrorizing of her.” Id.
Turning to good cause, the court observed that under Simpson, “an ALJ
may implicitly find good cause by finding that the evidence at issue is reliable.”
Id. at ¶27 (citing Simpson, 250 Wis. 2d at ¶22 n.5). It found that in Simpson,
“the good cause requirement is ‘always’ satisfied ‘when the evidence offered in
lieu of an adverse witness’s live testimony would be admissible’ under one of
the Wisconsin Rules of Evidence, such as Wis. Stat. § 908.03.” Id. (citing
Simpson, 250 Wis. 2d at ¶30). The court concluded that the ALJ “satisfied the
good cause requirement by implicitly finding the evidence against [the
petitioner] to be reliable and trustworthy.” Id. It reasoned that the ALJ
determined that Officer Meilahn’s personal observation of K.V.’s facial scarring
and what she read in the medical records corroborated K.V.’s statements
during the August 4, 2013 interview about the petitioner attacking her. Id. The
court recalled that “the ALJ found believable [Officer Meilahn’s] corroborative
testimony of observing [K.V.’s] extreme fear of [the petitioner] on August 4.” Id.
And the court did “not believe there [was] a reasonable probability that had
counsel objected to the victim’s lack of appearance, the ALJ would not have
25
Case 2:18-cv-00716-PP Filed 10/18/22 Page 25 of 34 Document 49

explicitly stated a finding of good cause based upon the reliability of the
evidence.” Id. at ¶27.
The Court of Appeals’ conclusion falls within the bounds of
reasonableness as §2254(d) requires. Under Seventh Circuit law, Morrissey
does not require an ALJ to make an explicit good cause determination to admit
reliable hearsay, and the cases the petitioner cites to the contrary are from
other circuits. See Dkt. No. 46 at 11. The petitioner’s argument that some kind
of balancing approach is required also relies on cases from other circuits. Id. at
11-12. If the relevant hearsay evidence was reliable, it would have been futile
for the petitioner’s lawyer to object to the lack of an explicit good cause
determination. A failure to raise a losing argument or motion does not
constitute ineffective assistance. Perez v. U.S., 286 F. Appx. 328 (7th Cir. 2008)
(citing Whitehead v. Cowan, 263 F.3d 708, 731 (7th Cir. 2001); United States v.
Jackson, 103 F.3d 561, 575 (7th Cir. 1996)).
2.

Unreasonable determination of the facts

Next, the petitioner challenges the reliability of the hearsay evidence,
asserting that both the ALJ and Court of Appeals rendered decisions based on
an unreasonable determination of the facts in light of the evidence presented.
Dkt. No. 46 at 14-17. He states that the Court of Appeals’ finding “‘that the
officer’s personal observation of scarring on the victim’s face and what the
officer read in the hospital medical records corroborated the victim’s hearsay
statements to the police officer and agent about [the petitioner] attacking her’ is
an unreasonable determination of the facts in light of the evidence and does
26
Case 2:18-cv-00716-PP Filed 10/18/22 Page 26 of 34 Document 49

not support the fact that the ALJ satisfied the good cause requirement by
implicitly finding the evidence to be reliable and trustworthy.” Id. at 15.
The petitioner maintains that K.V.’s medical records regarding the
injuries she suffered several weeks earlier indicate that she told the attending
physician at that time that her injuries resulted from getting hit by a softball
and falling down stairs. Id. He stresses that in one medical report, K.V. “denied
any domestic violence or other concerns.” Id. According to the petitioner, “the
hospital records directly contradict KV’s hearsay statements to the officer and
agent that [the petitioner] attacked her.” Id. at 16. He argues that “[t]he
hospital records do not corroborate KV’s hearsay statement or support the
ALJ’s implicit good cause requirement that the evidence used against [the
petitioner] was either reliable or trustworthy.” Id. In the petitioner’s opinion,
the ALJ should have credited K.V.’s statements indicating her injuries resulted
from getting hit by a softball and falling down stairs because “KV was alone
and in a safe place when she received medical care. Therefore, there was no
reason for her to lie to medical personnel.” Id. at 17.
The respondent asserts that the court should not consider this argument
“because it is an attempt at advancing a dismissed claim.” Dkt. No. 47 at 13.
The respondent stresses that “[the petitioner] was only allowed to proceed on
his two ineffective assistance of counsel claims.” Id.
Again, the petitioner waited until his reply brief to explain how this
argument related to ineffective assistance of counsel. In his reply brief, the
petitioner asserts that the most serious allegation against him was that he’d
27
Case 2:18-cv-00716-PP Filed 10/18/22 Page 27 of 34 Document 49

assaulted the victim four weeks earlier and that the incident resulted in eleven
stitches. Dkt. No. 48 at 5. The petitioner says that it was only after August 4,
2013 that the victim reported that it was the petitioner who’d caused those
injuries. Id. He claims that the other alleged release violations were not serious
enough to warrant a revocation sentence of five years and says that if his
attorney had objected “to the fact that the victim’s hearsay statement about
[the petitioner beating her was contradicted by the medical records, it is
possible [the petitioner] would not have been revoked for 5 years.” Id. at 5-6.
A decision involves an unreasonable determination of the facts under
§2254(d)(2) “if it rests upon fact-finding that ignores the clear and convincing
weight of the evidence.” Taylor v. Grounds, 721 F.3d 809, 817 (7th Cir. 2013)
(quoting Goudy v. Basinger, 604 F.3d 394, 399-400 (7th Cir. 2010)). “A state
court’s factual determinations are presumed correct, and the petitioner must
rebut that presumption by clear and convincing evidence.” Cal v. Garnett, 991
F.3d 843, 848-49 (7th Cir. 2021).
The Court of Appeals found that “the hearsay evidence related to [the
petitioner’s] abuse of [K.V.], including statements by [K.V.] and medical reports
detailing the specific injuries she sustained, was corroborated by the officer’s
testimony at the revocation hearing as to the officer’s personal observance on
August 4 of injury/scarring to [K.V.’s] face.” Dkt. No. 30-5 at ¶22. It concluded
that Officer Meilahn’s testimony as to K.V.’s demeanor on August 4, 2013
“further corroborate[d] the hearsay evidence of the medical records, police
report, and [K.V.’s] statement, as does the officer’s testimony that she received
28
Case 2:18-cv-00716-PP Filed 10/18/22 Page 28 of 34 Document 49

a medical release from [K.V.] in order to gain access to [K.V.’s] medical
records.” Id. Noting that the petitioner “also appear[ed] to complain that his
counsel was ineffective for not objecting to the officer’s testimony related to the
medical records because a copy of the records was not provided to either the
ALJ or to [the petitioner],” the court again saw no reasonable probability of a
different outcome. Id. at ¶23-24. It reasoned that while the petitioner believed
the records indicated that K.V.’s injuries resulted from falling down the stairs
or “being hit in the face with a softball,” the Court of Appeals “seriously
doubt[ed] that had the medical records themselves been admitted . . ., the ALJ
would have believed stairs and a softball were the actual causes.” Id. at ¶24.
The petitioner disagrees with the Court of Appeals’ evaluation or
interpretation of the evidence. The petitioner has not demonstrated that the
Court of Appeals’ determination resulted from fact-finding that ignored the
clear and convincing weight of the evidence. He has not rebutted by clear and
convincing evidence the presumption that the Court of Appeals’ factual
determinations are correct. And he has not explained why it was unreasonable
for the Court of Appeals to look askance at the victim’s inconsistent claims to
medical providers—that her injuries resulted from being hit by a softball, then
from falling down stairs—in light of her statements to, and demeanor with,
Officer Meilahn.
3.

Strickland

The petitioner argues that the Court of Appeals unreasonably applied
Strickland. Dkt. No. 46 at 17. He “posits he was prejudiced by Attorney
29
Case 2:18-cv-00716-PP Filed 10/18/22 Page 29 of 34 Document 49

Romanowich’s performance because he was deprived of a fair proceeding,”
reasoning that “counsel failed to object to KV’s hearsay statements which were
contradicted by the medical records.” Id. The petitioner again stresses that
medical records indicate K.V. initially denied domestic abuse and claimed her
injuries resulted from being hit by a softball and falling down stairs. Id. at 1718. He contends that “[c]ounsel should have objected that KV’s hearsay
statements to the officer and agent were inadmissible under Wis. Stat.
908.03(24) because they had no circumstantial guarantees of trustworthiness
comparable to the hearsay exceptions in Wis. Stat. 908.03(4)(6m)(24).” Id. at
18.
According to the respondent, the Court of Appeals correctly applied
Strickland. Dkt. No. 47 at 13-14. He reasons that “[a]s the Wisconsin Court of
Appeals correctly explained, [the petitioner] needed to show a ‘reasonable
probability’ that, but for the alleged constitutional deficiencies, the result of the
revocation hearing would have been different.” Id. at 14. The respondent argues
that “[r]eliability is no longer part of the prejudice analysis, and fairness is a
relevant consideration only in unusual types of situations not present here.” Id.
at 15 (citing Goodman v. Bertrand, 467 F.3d 1022, 1028 (7th Cir. 2006);
Washington v. Smith, 219 F.3d 620, 632 (7th Cir. 2000)).
When it rejected the petitioner’s ineffective assistance of counsel claims,
the Court of Appeals concluded that the petitioner “fail[ed] to demonstrate
prejudice—here, a reasonable probability the ALJ would have sustained the
objections he claims counsel should have made as well as a reasonable
30
Case 2:18-cv-00716-PP Filed 10/18/22 Page 30 of 34 Document 49

probability sustaining those objections would have resulted in a different
outcome.” Dkt. No. 39-5 at ¶15. The court found the petitioner’s appeal
“doomed” solely due to the lack of an explanation as to how Attorney
Romanowich’s failure to object prejudiced him. Id. (collecting cases).
Nonetheless, under its “own independent review of the record,” the court
determined that the petitioner “would be hard pressed to make a showing of
prejudice.” Id. at ¶16. The court reasoned that the petitioner stipulated to one
of the alleged violations—consuming alcohol; it stated that “even a single
violation provides a sufficient ground for revocation.” Id. (citing State ex rel.
Warren v. Schwarz, 211 Wis. 2d 710, 724 (Wis. Ct. App. 1997)). According to
the Court of Appeals, even if Attorney Romanowich had made the objections
that the petitioner suggested she should have, “such objections would not have
aided his case.” Id. The court reasoned that hearsay is admissible in a
revocation hearing. Id. at ¶17 (citing Simpson, 250 Wis. 2d at ¶30 n.6).
Further, the court observed that “fairly early in the hearing, when the
officer began to testify as to [K.V.’s] medical information on which the officer
had been ‘briefed,’ counsel did object on the basis that such testimony was
‘double hearsay.’” Id. (emphasis in original). It recounted the ALJ’s decision to
overrule that objection despite Attorney Romanowich’s arguments that “the
officer had ‘no firsthand knowledge of’ the medical information, ‘that kind of
hearsay is not the type of hearsay that is allowed at a hearing like this,’ and the
ALJ should ‘not allow the Officer to testify to that kind of information.’” Id. The
court observed that “[t]he officer then testified that she actually viewed the
31
Case 2:18-cv-00716-PP Filed 10/18/22 Page 31 of 34 Document 49

medical records herself and testified as to what she viewed in those records.”
Id. Observing the ALJ’s response to Attorney Romanowich’s objection, the
Court of Appeals saw “no reason to believe it [was] reasonably probable that
had counsel subsequently objected to the officer’s or agent’s testimony as to
directly reviewing the medical records, or objected to admission of the police
reports, the ALJ would have sustained the objection and prevented the
admission of the evidence.” Id. The court saw “no basis other than speculation
for concluding [the petitioner] was prejudiced by his counsel’s failure to make
the objections he claims she should have made, and speculation will not
sustain an ineffective assistance of counsel claim.” Id. at ¶28 (citing State v.
O’Brien, 214 Wis. 2d 328, 349-50 (Wis. Ct. App. 1997)).
The petitioner’s conclusory arguments that had Romanowich objected to
the alleged unreliability of the victim’s statements, things might have gone
differently is not sufficient to prove prejudice under Strickland. “The likelihood
of a different result must be substantial, not just conceivable.” Harrington, 562
U.S. 86, 112 (2011) (citing Strickland, 466 U.S. at 693). The petitioner does not
explain why he believes that the ALJ would have sustained an objection had
Romanowich made it. The Court of Appeals itself noted that even if
Romanowich had objected to the victim’s statements on hearsay grounds, “the
ALJ had no hesitations about admitting other hearsay evidence at the hearing.”
Dkt. No. 30-5 at ¶24. The appellate court also noted that during her interview
with Meilahn, the victim stated—while she was visibly upset, jumpy, fearful
and sometimes crying—that the petitioner had attacked her and attempted to
32
Case 2:18-cv-00716-PP Filed 10/18/22 Page 32 of 34 Document 49

kill her “at three separate occasions, at least within the last year, the most
recent being about three weeks prior to” August 4, 2013. Id. The appellate
court observed that these statements “also appear to satisfy the excited
utterance exception to the hearsay rule.” Id. (citing in n.7 Wis. Stat.
§908.03(2)).
The Court of Appeals did not unreasonably apply federal law when it
concluded that the petitioner could not demonstrate prejudice under
Strickland, even if it was deficient performance for counsel to fail to object (and
the court did not find that counsel’s performance was deficient). Because the
petitioner has not demonstrated that the hearsay evidence was unreliable, or
that Attorney Romanowich performed ineffectively by failing to object to their
admission, the court will dismiss the petition and dismiss the case.
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
(2000) (internal quotations omitted). The court declines to issue a certificate of

33
Case 2:18-cv-00716-PP Filed 10/18/22 Page 33 of 34 Document 49

appealability, because reasonable jurists could not debate the court's decision
to deny the petition on the merits.
IV.

Conclusion
The court DISMISSES the petition for writ of habeas corpus. Dkt. No. 1.
The court DECLINES TO ISSUE a certificate of appealability.
The court ORDERS that this case is DISMISSED WITH PREJUDICE.

The clerk will enter judgment accordingly.
Dated in Milwaukee, Wisconsin this 18th day of October, 2022.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge

34
Case 2:18-cv-00716-PP Filed 10/18/22 Page 34 of 34 Document 49