Baskerville v. SMITH

Filing 7

ORDER denying 5 Motion for Reconsideration. Signed by Chief Judge Barbara B. Crabb on 10/5/09. (elc),(ps)

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

W A L L A C E BASKERVILLE, P e ti ti o n e r , v. JU D Y SMITH, Warden, O s hk osh Correctional Institution, R espo nd ent. OR DER 0 9 - cv -0 4 2 6 - b b c

Petition er Wallace Baskerville has asked the court to reconsider the portion of its ord er entered September 16, 2009, dismissing claims 3(a), (d), (f), (g) (ineffective assistance of counsel), 4(a) (Brady violations) and 5 (denial of postconviction discovery) of petitioner's state habeas petition. Having carefully considered petitioner's motion, I am satisfied that dism issal of these claims was correct. As with his initial petition, petitioner fails to adduce facts (rather than conclusory assertions) to show how the alleged errors by his lawyer and the pro secu to r prejudiced him. With respect to his claim that the state circuit court improperly denied his motion for postconviction discovery, petitioner has not shown that Wisconsin's po st-con viction discovery procedure is itself unfair or inadequate. In other words, it is the fairness of the procedures themselves, not their application in any given case, with which the

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C o nstitutio n is concerned. Petitioner has not shown that the state's procedure is inherently un fair or inadequate. One comment is warranted regarding claim 3(f). I construed that claim in the S ep tem b er 16, 2009 order as an allegation that petitioner's trial lawyer was ineffective for failing to review 911 tapes relating to an unrelated false rape charge filed by one of the victim s against a different individual. From the motion to reconsider, it appears that petition er is also complaining that his lawyer failed to listen to a separate 911 tape in which petitioner was the caller and which was introduced by the prosecution in the trial on the m ayh em and aggravated battery charges that are the subject of this habeas action. U nderstanding that distinction, however, does not lead to reinstatement of the claim. Petition er asserts that had his lawyer listened to the tape, he "would have known what his client had said, and what police, and D.A. said he said was totally different." Mot. to R e co n sid er, dkt. #5, at 4. I infer that petitioner is contending that the prosecutor

m isrepresented what petitioner said on the tape. However, petitioner does not allege the nature of this misrepresentation, provide any evidence to prove what he actually said on the tape or explain why any misrepresentation (and his lawyer's failure to expose it) affected the o utco m e of the trial. As in his initial petition, petitioner has failed to make any colorable show ing that his lawyer's alleged errors with respect to the 911 recordings affected the o utco m e of his trial. 2

OR DER IT IS ORDERED that the motion of petitioner Wallace Baskerville for reco n sid eratio n of the portion of the court's order entered September 16, 2009, dismissing claim s 3(a), (d), (f), (g), 4(a) and 5, is DENIED. E n tered this 5t h day of October, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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