Warfield v. GRAMS

Filing 20

ORDER granting 17 Motion for Certificate of Appealability.Petitioner must either pay the $455 filing fee or file an application for leave to proceed ifp. Signed by Chief Judge Barbara B Crabb on 3/9/09. (elc)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN

A N D R E W. WARFIELD, P e ti ti o n e r , v. G R E G GRAMS, Warden, C o lu m b ia Correctional Institution, R espo nd ent. OR DER 0 8 -c v -0 4 7 7 -s lc

An dre Warfield asks this court to issue a certificate of appealability permitting him to appeal from this court's order and judgment entered January 30, 2009 denying his p etitio n for a writ of habeas corpus. Petitioner contends that his state court conviction for h ostage-tak in g and kidnapping in the course of a home invasion in which he denied having participated except as a getaway driver and lookout was in violation of his right to due pro cess because the link between the crimes of which he was guilty (conspiracy to commit arm ed robbery) and the substantive crimes (hostage-taking and kidnapping) was too atten uated to permit the jury to find him guilty. This court rejected petitioner's argument that the due process clause required an additional "attenuation" analysis beyond the "reaso n ab ly foreseeable" safeguards set forth in Pinkerton v. United States, 328 U.S. 640 (1946). Applying the deferential standard of review required by 28 U.S.C. § 2254(b), the court also found that the state court of appeals had applied clearly established federal law

reason ably when it found the evidence adduced at trial sufficient to support petitioner's con viction for hostage-taking and kidnapping under a vicarious liability theory. A certificate of appealability shall issue "only if the applicant has made a substantial show ing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). In order to make th is showing, a petitioner must "sho[w] 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 to proceed further.' " Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n.4 (1983)). In his motion for a certificate for appealability, petitioner presses his unsuccessful attenu ation /due process argument and his related argument that the state appellate court's decision is not entitled to deference under § 2254(d) because it failed to address the attenuation issue. Neither of these arguments merits a certificate of appealability. In the absence of any authority to the contrary, reasonable jurists would not debate that P in kerto n 's restrictions on the imposition of vicarious liability for the act's of one's coco n sp irato rs already account for the "attenuation" problem posed by petitioner. Also not d eb atab le is the conclusion that the state court of appeals adjudicated the merits of petition er's "attenuation" argument when it reviewed the sufficiency of the evidence to supp ort the conviction. Nevertheless, I will grant the certificate because there is at least a re a s o n a b le possibility that jurists could debate whether the court of appeals reasonably app lied the test of Jackson v. Virginia, 443 U.S. 307, 319 (1979), to the evidence in this

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case when it found the evidence sufficient to sustain petitioner's convictions for hostagetaking and kidnapping.

ORDER IT IS ORDERED that the motion of Andre Warfield for a certificate of appealability is GRANTED with respect to the issue whether the Wisconsin Court of Appeals reasonably app lied the test of Jackson v. Virginia, 443 U.S. 307, 319 (1979), to the evidence adduced at trial when it sustained petitioner's convictions for hostage-taking and kidnapping. If petitioner seeks to appeal, he must either pay the $455 filing fee or file an app lication for leave to proceed in forma pauperis. E n tered this 9 t h day of March, 2009. B Y THE COURT: /s/ B AR B AR A B. CRABB D istrict Judge

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