Hodkiewicz v. Richardson

Filing 24

ORDER signed by Magistrate Judge Nancy Joseph. IT IS HEREBY ORDERED that the petitioner's Motion for Relief from Judgment (Docket # 23 ) is GRANTED IN PART AND DENIED IN PART. A certificate of appealability shall issue on Hodkiewicz's ineffective assistance of counsel claim. (cc: all counsel, via US Mail to Petitioner) (ds)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

ERIC HODKIEWICZ,
Petitioner,
v.

Case No. 18-CV-900

REED RICHARDSON,
Respondent.
DECISION AND ORDER
DENYING MOTION FOR RELIEF FROM JUDGMENT

Eric Hodkiewicz seeks reconsideration of the denial of his petition for a writ of habeas
corpus under 28 U.S.C. § 2254. (Docket # 23.) In a decision dated September 24, 2019, I
found that the decision of the Wisconsin Court of Appeals affirming Hodkiewicz’s conviction
and sentence was not contrary to, and did not involve an unreasonable application of, clearly
established federal law. (Docket # 21.) I also denied Hodkiewicz a certificate of appealability.
(Id. at 32–32.) For the reasons below, I will deny Hodkiewicz’s motion to reconsider, but
grant him a certificate of appealability on his ineffective assistance of counsel claim.
LEGAL STANDARD
A party may move the court for reconsideration of a judgment within twenty-eight
days following the entry of the judgment. Fed. R. Civ. P. 59(e), 60(b). A motion for
reconsideration serves a very limited purpose in federal civil litigation; it should be used only
“to correct manifest errors of law or fact or to present newly discovered evidence.” Rothwell
Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987) (quoting Keene Corp. v. Int’l

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Fidelity Ins. Co., 561 F. Supp. 656 (N.D. Ill. 1982), aff’d 736 F.2d 388 (7th Cir. 1984)). “A
‘manifest error’ is not demonstrated by the disappointment of the losing party. It is the
‘wholesale disregard, misapplication, or failure to recognize controlling precedent.’” Oto v.
Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (quoting Sedrak v. Callahan, 987 F.
Supp. 1063, 1069 (N.D. Ill. 1997)). Apart from manifest errors of law, “reconsideration is not
for rehashing previously rejected arguments.” Caisse Nationale de Credit Agricole v. CBI
Industries, Inc., 90 F.3d 1264, 1270 (7th Cir. 1996). Whether to grant a motion for
reconsideration “is left to the discretion of the district court.” Id.
ANALYSIS
Hodkiewicz argues for reconsideration on the basis that my decision made erroneous
assumptions of fact and overlooked relevant considerations, and overlooked controlling law
regarding procedural default, denial of his confrontation rights, denial of due process,
ineffective assistance of counsel, the cumulative prejudicial effect of counsel’s errors, and
denial of a certificate of appealability. (Docket # 23.)
1.

Background

Hodkiewicz points out that the “Background” section of my decision neglected to
mention that Hodkiewicz’s defense relied not just on S.P.’s motives to falsely accuse him and
the lack of eyewitnesses and physical evidence linking him to the crimes, but also on
Hodkiewicz’s own testimony. (Docket # 23 at 2.) Hodkiewicz asserts that this testimony was
corroborated by evidence suggesting that Hodkiewicz could not have committed many of the
acts attributed to him (because he was either in jail, on electronic monitoring, or at home
caring for his child). (Id.) Hodkiewicz also faults my decision for repeating the state court’s
misleading characterization of the testimony of Hodkiewicz’s father that Hodkiewicz parked

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his truck “near the family’s home,” when in fact Hodkiewicz’s father testified that
Hodkiewicz had parked his truck in the shop near the family’s home, and that the officer who
had gone looking for Hodkiewicz’s truck on the night of one of the incidents admitted that he
could not see into the shop and did not look there. (Id. at 2–3.) Hodkiewicz does not explain
how either of these alleged errors justifies reconsideration, admitting that they “may or may
not have impacted [the court’s] final decision.” (Id. at 2.) This falls far short of showing the
kind of manifestly erroneous understanding of the facts that would justify reconsideration.
2.

Procedural Default

In my decision denying Hodkiewicz’s petition, I found that Hodkiewicz’s challenges
to the admission of hearsay and false evidence were barred by an independent and adequate
state procedural ground. (Docket # 21 at 14–16.) I explained that the Wisconsin Court of
Appeals found that Hodkiewicz had waived those stand-alone constitutional claims by not
objecting at trial, and Hodkiewicz had not shown cause for and prejudice to excuse the
default. (Id. at 15–16 (citing Docket # 1-2 ¶¶ 20, 48).)
Hodkiewicz argues that the court of appeals did, in fact, address these claims on the
merits and relied on the merits in denying them. (Docket # 23 at 3–4.) Hodkiewicz points out
that the court of appeals performed a “plain error” analysis of the hearsay claim and
determined that the error was harmless, and argues that the plain error analysis constituted a
determination on the merits. (Id.) Similarly, Hodkiewicz argues that the court of appeals
evaluated the merits of the false evidence claim and concluded that the testimony was not in
fact false and/or the error was harmless. (Id. at 4.) Thus, Hodkiewicz argues that procedural
default does not apply.

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Hodkiewicz has not shown that this court’s decision was erroneous. The court of
appeals clearly relied on procedural waiver when it stated that “Hodkiewicz concedes his trial
attorney did not object to any of this hearsay testimony” (Docket # 1-2 ¶ 20) and then
proceeded to review for plain error or ineffective assistance of counsel—two possible
exceptions to waiver. Similarly, for the false evidence claim, the court of appeals stated that
“Hodkiewicz concedes his trial counsel did not object to Henzel’s testimony” and then
reviewed for plain error or ineffective assistance of counsel. (Id. ¶ 48.) Although the court of
appeals could have been even more explicit about its reliance on procedural waiver, it
unambiguously conveyed that reliance when it noted the failure to object and reviewed for
plain error. See Rodriguez v. McAdory, 318 F.3d 733, 735 (7th Cir. 2003) (citing Hinkle v. Randle,
271 F.3d 239, 244 (6th Cir. 2001) (“We view a state appellate court’s review for plain error as
the enforcement of a procedural default.”)). A state court’s review of the merits to determine
whether an exception to procedural waiver might apply does not transform the decision into
one on the merits. Gray v. Hardy, 598 F.3d 324, 329 (7th Cir. 2010) (citing Miranda v. Leibach,
394 F.3d 984, 992 (7th Cir. 2005); Rodriguez, 318 F.3d at 735; Neal v. Gramley, 99 F.3d 841,
843–44 (7th Cir. 1996); Lee v. Davis, 328 F.3d 896, 900 (7th Cir. 2003)); see also Rodriguez, 318
F.3d at 736 (“Although a state court’s review of whether an error is ‘plain’ often entails at
least limited review of the merits, that limited review is at most ‘entangled’ with the merits
and certainly not ‘entirely dependent on the merits.”) (internal quotations and citations
omitted); Brooks v. Walls, 279 F.3d 518, 523–24 (7th Cir. 2002) (concluding that “[a] state does
not abandon the benefits of [the independent and adequate state ground] doctrine by allowing
plain-error review”).

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The majority of Hodkiewicz’s other arguments are premised on the assumption that
his hearsay and false evidence claims were not procedurally defaulted. (Docket # 23 at 4–10.)
He asserts that the proper standard for prejudice was the “harmless error” standard of
Chapman v. California, 386 U.S. 18 (1967), rather than the “reasonable probability of a different
result” standard for ineffective assistance of counsel claims under Strickland v. Washington, 466
U.S. 668 (1984). However, as explained, these claims were procedurally defaulted, so the
Strickland standard was the appropriate one and Hodkiewicz has identified no error justifying
reconsideration.
3.

Ineffective Assistance of Counsel

Hodkiwiecz argues that the court overlooked facts regarding counsel’s failure to
introduce evidence to expose the state’s attempt to mislead the jury into thinking that
Hodkiewicz and his neighbor, Kyle Thorson, had fabricated an alibi long after the alleged
“shovel” incident of December 9, 2011. (Id. at 8–9.) At trial, Thorson testified that he was
with Hodkiewicz on the evening of one of the incidents relevant to the stalking charge.
(Docket # 14-16 at 14–19.) On rebuttal, Detective Wade Wudtke testified that Hodkiewicz
had not mentioned Thorson a few weeks later when Wudtke and Hodkiewicz had put
together a timeline of Hodkiewicz’s whereabouts the night of the incident. (Docket # 14-17
at 63–65.) Defense counsel declined to cross-examine Wudtke.
Hodkiewicz argued that his counsel was aware of discovery showing that both
Hodkiewicz and Thorson had reported the alibi to police a few days after the incident, and
was deficient for not using these prior statements to rebut the inference that they fabricated
the alibi after Hodkiewicz’s discussion with Wudtke. (Docket # 15 at 25.) The evidence
included a signed statement from Hodkiewicz dated December 12, 2011 and a police report

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dated December 14, 2011 detailing Officer Joe Verbrigghe’s interviews with both Hodkiewicz
and Thorson, who had both reported spending time together that evening. (Docket # 14-1 at
64–68.) At a hearing on the post-conviction motion, counsel could think of no strategic reason
for failing to introduce that evidence. (Docket # 14-20 at 28–34.)
My decision denying relief explained that the Wisconsin Court of Appeals reasonably
concluded that Hodkiewicz was not prejudiced by this omission. I explained that “it was not
clear that [the evidence] would have been helpful, let alone that it would have affected the
outcome of trial.” (Docket # 21 at 28.) I explained:
While it is possible that counsel’s attempt to expose the state’s allegedly
misleading evidence might have helped Hodkiewicz, this is not clearly so. The
jury might have concluded that the state had been trying to mislead them, but
it also might have been struck by the problems with Thorson’s statement.
Thorson told police four days after the incident that he saw Hodkiewicz’s
exterior lights on between 7:00 and 7:30 p.m., that he then exchanged text
messages with Hodkiewicz, that he saw the lights on in Hodkiewicz’s garage
around 9:00 p.m., and that he went over to visit Hodkiewicz around 10:00 p.m.
(Docket # 10-4 at 113.) This leaves obvious windows in which Hodkiewicz
could have committed the assault. Furthermore, it is inconsistent with
Thorson’s statement at trial that he spoke with Hodkiewicz from approximately
8:30 p.m. to 10:00 p.m.
(Id. at 27–28.) Hodkiewicz argues that the court premised its determination of prejudice on a
misunderstanding of Hodkiewicz’s argument. (Docket # 23 at 9.) The court understood
Hodkiewicz to be arguing that counsel should have introduced the statements themselves,
when his argument was that counsel ought merely to have elicited the fact that they existed.
(Id.)
This argument for reconsideration is premised on the court’s alleged error in
construing the nuances of a brief; it does not point to any manifest error of fact or law that
would justify reconsideration. Furthermore, it would not alter the outcome of my decision.
Hodkiewicz has shown neither that the attorney acted deficiently nor that he was prejudiced
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under Strickland. To show deficient performance, Hodkiewicz must show that the acts or
omissions “could not be the result of professional judgment.” United States ex rel. Thomas v.
O’Leary, 856 F.2d 1011, 1015 (7th Cir. 1988) (emphasis added) (citing Strickland v. Washington,
466 U.S. 668, 690 (1984)). Hodkiewicz has not done so, despite counsel’s failure to recall any
strategic reason for the omission. (Docket # 14-22 at 33–34.) By the time Wudtke testified,
defense counsel had already elicited the fact that Thorson had made such a statement, and a
reasonable attorney could have thought that it backfired on Hodkiewicz. The defense called
Thorson to testify and elicited the fact that two or three days after the incident, police
contacted him and questioned him about Hodkiewicz’s whereabouts. (Docket # 14-16 at 18–
19.) Thorson explained that he told police that he and Hodkiewicz had been caring for their
children that evening and that they were together until about 10:00 p.m. (Id. at 19.) However,
on cross-examination, the prosecution hinted at discrepancies between this account and the
police report, indicating that Thorson said he did not speak with Hodkiewicz until 10:00 p.m.
(Id. at 20–22.) The prosecution also elicited an admission from Thorson that he had not told
police that he heard Hodkiewicz come home between 7:30 and 8:00 p.m., but had added that
information only at trial. (Id.) The prosecutor then elicited testimony from Thorson suggesting
that his report to police—the one that stated that he did not speak with Hodkiewicz until
10:00 p.m.—was likely more accurate because his recollection had been fresh then and he
found it hard to remember at trial. (Id.) Given the vulnerabilities in the alibi, a decision not to
redirect the jury’s attention to the earlier report could have been the result of professional
judgment.
Furthermore, Hodkiewicz has not argued the requisite prejudice. He argues that
knowledge that the alibi had been reported earlier would have bolstered his alibi and also

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shown jurors that the state was trying to mislead them, making jurors more skeptical of the
state. (Id.; Docket # 15 at 35.) This is quite possibly so. However, in the context of this trial,
it strains the imagination to suppose that this would have changed the outcome. From
Thorson’s testimony, the jury had already heard that the alibi had been reported earlier to a
different officer. Furthermore, while this would have rebutted the inference that Hodkiewicz
and Thorson had fabricated the alibi much later, it still would not have explained the alibi’s
absence from Wudtke’s timeline resulting from Hodkiewicz’s apparent failure to mention it.
The strongest argument in Hodkiewicz’s favor is that proving that Hodkiewicz did not
commit this assault could have gone a long way toward discrediting the alleged victim, S.P.,
who claimed not to have seen the attacker but to have recognized Hodkiewicz’s voice. In a
trial notable for a total lack of DNA evidence, fingerprints, or any other physical evidence
linking Hodkiewicz personally to the crimes, the prosecution’s case hinged in large part on
the credibility of S.P. If Hodkiewicz could convince the jury that he was with Thorson at the
time of the assault, the jury would have to believe that S.P. had either fabricated the events or
been mistaken in identifying Hodkiewicz’s voice. However, Hodkiewicz has not shown a
reasonable likelihood that counsel’s introduction of more evidence that the alibi had been
reported previously would have convinced the jury that S.P. must have fabricated her
testimony or been confused in her identification of Hodkiewicz. Whether or not the alibi was
reported earlier did not change the fact that there would have been time enough for
Hodkiewicz to converse with Thorson and commit the assault. In light of all this, I cannot
conclude that there was a reasonable probability of a different outcome had counsel done
more to rebut the inference from Wudtke’s testimony that the alibi was reported later than it
actually was.

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As for Hodkiewicz’s argument that knowing that the alibi had been reported earlier
would have caused the jury to conclude that the State was trying to mislead it, I must first
deal with Hodkiewicz’s contention that AEDPA deference is not owed to the state court on
this argument because the state court did not address it. (Docket # 23 at 9.) While it is true
that the state court did not address this specific argument, it addressed this claim, and that is
enough to make the decision on that claim subject to AEDPA deference. A state court need
not address every possible merits argument for AEDPA deference to apply—indeed, AEDPA
deference could apply to a claim even if a state gave no reason at all. See Harrington v. Richter,
562 U.S. 86, 784–84 (2011) (stating that § 2254(d) “does not require a state court to give
reasons before its decision can be deemed to have been ‘adjudicated on the merits.’”)
Furthermore, nothing about the potential effect on the jury’s perception of the State persuades
me to alter my conclusion that the state court’s decision on the prejudice prong of
Hodkiewicz’s ineffective assistance of counsel claim was reasonable. There was nothing
obviously untrustworthy about the testimony itself; even Hodkiewicz admitted that he could
not recall telling Wudtke about the meeting with Thorson. (Docket # 12-18 at 47–48.)
Hammering home the fact that Hodkiewicz and Thorson had reported the conversation
earlier would not change the fact that Hodkiewicz made a different report to Wudtke later.
Further, the prosecution did not actually argue that Hodkiewicz and Thorson had fabricated
the alibi long after the incident—they could not, as Thorson had already testified that he had
reported it to police two or three days afterward and Thorson had been questioned about that
report.
For all these reasons, even if counsel for Hodkiewicz had clearly conveyed the fact
that both Hodkiewicz and Thorson had reported their conversation soon after the alleged

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incident, the state court was not unreasonable in concluding that a different outcome was not
reasonably probable.
4.

Cumulative Effect of Counsel’s Errors

Hodkiewicz argued that the cumulative effect of counsel’s errors affected the jury’s
ability to assess S.P.’s credibility, the undermining of which was central to Hodkiewicz’s
defense. (Docket # 2 at 26–36.) The court of appeals disposed of this claim cursorily in a
footnote after finding Hodkiewicz impermissibly prejudiced on two of the charges, stating
that the “claimed errors, whether considered individually or together, do not convince us he
is entitled to a new trial on the remaining seven counts.” (Docket # 1-2 at 26 n.10.) Despite
the lack of reasoning from the court of appeals, I concluded that its determination that the
cumulative effect of counsel’s errors did not warrant a new trial was not an unreasonable
application of or contrary to Strickland. (Docket # 21 at 28–29.)
Hodkiewicz argues that the state courts and this court impermissibly evaluated the
strength of only one party’s evidence. (Docket # 23 at 10 (citing Holmes v. South Carolina, 547
U.S. 319, 330 (2006)). However, Hodkiewicz does not identify what other evidence that S.P.
lacked credibility the court failed to consider. Certainly, in deciding whether there is a
reasonable probability that trial errors changed the outcome, the court must consider all of
the evidence. Cook v. Foster, 948 F.3d 896, 909 (7th Cir. 2020). “Logically, a verdict weakly
supported by the record is more likely to have been affected by errors than one with
overwhelming record support.” Id. (citing Blackmon v. Williams, 823 F.3d 1088, 1105 (7th Cir.
2016)). This court meticulously reviewed the entire record, and the decision noted points
favoring Hodkiewicz throughout. But it bears remembering that my task was not to make a
de novo determination of prejudice, but to assess the reasonableness of the court of appeals’

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determination. “The bar for establishing that a state court’s application of the Strickland
standard was ‘unreasonable’ is a high one, and only a clear error in applying Strickland will
support a writ of habeas corpus.” Allen v. Chandler, 555 F.3d 596, 600 (7th Cir. 2009). Even if
I assumed that the court of appeals inappropriately skewed its review of prejudice in favor of
S.P.’s credibility without analyzing the contrary evidence, Hodkiewicz had to show that the
result was unreasonable—i.e., not among the range of equally plausible outcomes. See Morgan
v. Krenke, 232 F.3d 562, 565–66 (7th Cir. 2000). To do this, Hodkiewicz had to show that
counsel’s performance, taken as a whole, seriously undermines confidence in the outcome of
the trial.
As I explained in my decision, after a six-day trial with testimony from nearly three
dozen witnesses including Hodkiewicz and S.P., the jury convicted Hodkiewicz despite the
lack of physical evidence of his involvement and despite his alleged alibis. While the type of
errors identified might have made the difference between a verdict of guilty or innocent in a
different trial, the state court reasonably concluded that they would not have done so in this
trial. There may be a reasonable probability that the alleged errors could or even should have
changed the outcome, but it can reasonably be concluded that they would not have.
5.

Certificate of Appealability

Finally, Hodkiewicz argues that this court should have granted a certificate of
appealability. Hodkiewicz asserts that his claims “are far from frivolous or unworthy of
consideration.” (Id. at 11.) I agree. If they had been frivolous or unworthy of consideration,
they would have been rejected at the screening stage. The standard for a certificate of
appealability is not whether the claims are frivolous, but whether the applicant has made “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Rules

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Governing § 2254 Cases, Rule 11(a). This has been interpreted to mean that a petitioner must
show that “reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). A petitioner need
not show that the appeal will succeed, but he must show “something more than the absence
of frivolity” or the existence of mere “good faith” on his part. Miller–El v. Cockrell, 537 U.S.
322, 337–38 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).
On further review, although the court of appeals’ prejudice finding was a reasonable
one, I agree with Hodkiewicz that reasonable jurists could debate that conclusion and will
grant Hodkiewicz a certificate of appealability on his ineffective assistance of counsel claim.
Hodkiewicz further argues that he is entitled to a certificate of appealability because
the court’s denial of his double jeopardy claim relied on a Seventh Circuit decision, Boyd v.
Boughton, 798 F.3d 490 (7th Cir. 2015), that he believes to be erroneous. 1 (Docket # 23 at 11–
12.) This court is bound by Boyd, so reasonable jurists would not debate that this court
properly denied Hodkiewicz’s double jeopardy claim. The denial of a certificate of
appealability does not, as Hodkiewicz appears to believe (id. at 11), deny him the opportunity
to raise his objections to Boyd in the appellate court. A petitioner who has been denied a
certificate of appealability by the district court may request that a circuit court issue the
certificate. Fed. R. App. P. 22(b)(1).
CONCLUSION
Hodkiewicz has not identified any manifest error of law or fact that would prompt me
to alter my conclusion that he is not entitled to a writ of habeas corpus under 42 U.S.C. §
Hodkiewicz also seeks reconsideration on the ground that the court misstated the holding of a case
in an explanatory parenthetical. (Docket # 23 at 12.) The decision did not rely on that case and this
is not the kind of “wholesale disregard, misapplication, or failure to recognize controlling precedent”
that would justify reconsideration.
1

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2254. However, I will grant Hodkiewicz a certificate of appealability on his ineffective
assistance of counsel claim.
ORDER
NOW, THEREFORE, IT IS HEREBY ORDERED that the petitioner’s Motion for
Relief from Judgment (Docket # 23) is GRANTED IN PART AND DENIED IN PART. A
certificate of appealability shall issue on Hodkiewicz’s ineffective assistance of counsel claim.

Dated at Milwaukee, Wisconsin, this 4th day of August, 2020.
BY THE COURT:
s/ Nancy Joseph
NANCY JOSEPH
United States Magistrate Judge

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