Evans, Tommie v. HUMPHREYS, ROBERT

Filing 20

Transmission of Notice of Appeal, Order, Judgment and Docket Sheet to Seventh Circuit Court of Appeals re 17 Notice of Appeal. (Attachments: # 1 Order, # 2 Judgment, # 3 Docket Sheet) (elc),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

TOMMIE E. EVANS,
Petitioner,

OPINION AND ORDER

v.
10-cv-328-wmc

ROBERT HUMPHREYS, Warden,
Racine Correctional Institution.
Respondent.
Tommie Evans, an inmate at the Racine Correctional Institution, filed a petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254, contending that his convictions were
based on insufficient evidence. The court ordered the respondent to show cause why this
petition should not be granted. Respondent filed a response on September 16, 2010, with
Evans then to file his brief in support of his petition by October 18, 2010. After Evans failed
to file his brief timely, the court granted him an extension until November 15, 2010, to file
it. To date, Evans has still not filed a responsive brief. The court will, therefore, address the
merits of his petition on the present record.

FACTS
After a jury trial, petitioner Tommy Evans was convicted in state court on two counts
of burglary while armed with a dangerous weapon, one count of armed robbery with threat
of force and one count of possession of a firearm by a felon. Evans was sentenced as a repeat
offender.

Evans appealed. On November 15, 2007, the Wisconsin Court of Appeals found the
evidence sufficient to support the jury’s verdicts. The court of appeals summarized the
evidence at trial as follows:
The charges were based on allegations that two men with their faces covered
and brandishing handguns broke into the apartment of Claude Anderson, beat
Anderson on the head, and took money he had recently won at a casino and
some other items, including a bottle of Tums. Anderson testified that he was
lying on his couch watching television around 10:30 p.m. when he heard the
glass in his front door breaking and the two men came running in. Although
the men had material of some sort over their heads, Anderson testified he
thought that they were both black males in their twenties. He said both men
were wearing jeans, but could not recall what type of shirts they had on.
The police noticed that the grass was depressed in a path leading from the
victim’s building to a fence and on to the street on the other side of the fence,
which was DeVolis Parkway. The police recovered a Tums bottle and $46 in
the backyard approaching the fence along the path of depressed grass. They
never recovered the other items taken, the guns used, or any physical evidence
linking the defendants to the crime.
One of Anderson’s neighbors, Willie Fleming, testified that he heard a dog
barking and glass breaking at Anderson’s apartment on the evening in
question. Shortly thereafter, he looked out of a window, and saw two people
running across the backyard and jumping over a fence. He thought one of
them was wearing a white hooded sweatshirt with the hood covering the man’s
head, and the other one had a darker hooded sweatshirt.
Gary Bell testified that he saw a white SUV playing loud music pull up in
front of his house sometime around 11:00 p.m. He saw one man get out of the
car and move from the back seat to the front seat. He saw another man, who
was a dark complected black male wearing a white t-shirt, first standing next
to the vehicle and then walking eastbound. About twenty to twenty-five
minutes later, Bell heard the vehicle return. He went outside and saw two
black males, one of whom was wearing a white t-shirt, running toward the
vehicle from the general direction of the victim’s building. The man in the
white t-shirt was leaning over as though he was carrying something and Bell
heard a jingling coin-like noise. Bell also heard a dog barking nearby. The two
running men got into the backseat and the car took off extremely fast while
the doors were still shutting. Bell followed the car, got its license plate number
and called 911.
Kionna Moore’s parents owned the white SUV whose license plate number
Bell obtained. Moore testified that she dropped off Evans and her boyfriend,
the co-defendant Zallassio Sain, on Bell’s street a little after 11:00 p.m. on the
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night in question. A third man moved up to the front seat at that time. Sain
called the third man to have Moore come pick them back up in the same place
about twenty to twenty-five minutes later. Moore claimed she did not know
why Evans and Sain wanted to go to that area of town. She said Evans was
wearing a white t-shirt and jeans, and Sain was wearing jeans and a white tshirt over a blue t-shirt when she dropped them off. Sain was carrying the
white t-shirt over his arm when he returned to the vehicle.
The witnesses all gave varying estimates of the two men’s heights.
State of Wisconsin, 2006-AP-2038, November 15, 2007, pp.2-3.
The court of appeals reviewed the sufficiency of the evidence supporting Evans
conviction applying the standard from State v. Zimmerman, 2003 WI App 196 ¶24, 266 Wis.
2d 1003, 669 N.W.2d 762 (quoting State v. Poellinger, 153 Wis. 2d 493, 507. 451 N.W.2d
752 (1990). The standard is “unless the evidence, viewed most favorably to the state and
the conviction, is so lacking in probative value and force (that it can be said as a matter of
law) that no trier of fact, acting reasonably, could have found guilt beyond a reasonable
doubt.” Id. The court noted that Evans challenged only the sufficiency of the evidence to
establish that he was properly identified as one of the perpetrators.
The court of appeals found that the discrepancies in the witnesses’ physical
descriptions of the suspects and the clothes they were wearing were of limited importance
given the positive identifications made by Moore. Moore identified the two men who got
into a white car waiting on DeVolis Parkway the night of the robbery as Evans and Sain,
who she knew.
The court of appeals further emphasized the following facts: the grass was depressed
in a pathway from near the victim’s building to the fence and then toward the street where
the car had been parked; neighbors saw two men running in the same time frame as the
robbery; one man had a white covering on his head and one was carrying a t-shirt. These
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latter facts corroborated Anderson’s testimony that the men who robbed him had wrapped
white material over their heads. Finally, Sain and Evans did not explain why they wanted
to be dropped off and picked up in the neighborhood.
The court of appeals concluded that it was reasonable for the jury to infer from this
evidence that Sain and Evans were the men who Anderson said had robbed him. The court
of appeals affirmed Evan’s convictions.
On January 22, 2008, the Wisconsin Supreme Court denied Evans’s petition for
review.
OPINION
Pursuant to 28 U.S.C. § 2254(d), this court must accord special deference to the
conclusion reached by the state court of appeals. Specifically, this court may not grant
Evans’ application for a writ of habeas corpus unless the state court’s adjudication of his
claim:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2) resulted in a decision that 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). This court reviews the decision of the last state court to address
Evans’s petition on the merits -- in this case, the Wisconsin Court of Appeals. Ebert v. Gaetz,
610 F.3d 404, 411 (7th Cir. 2010).
“A state court unreasonably applies federal law if it identifies the correct legal
principle but unreasonably applies it to the facts of the case, or if it unreasonably refuses to

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extend a principle to a context in which it should apply.” Goudy v. Basinger, 604 F.3d 394,
399 (7th Cir. 2010) (citing Williams v. Taylor, 529 U.S. 362, 407 (2000)). The state court's
application of federal law must have been both incorrect and unreasonable, “that is, lying
well outside the boundaries of permissible differences of opinion.” Id. (quoting Toliver v.
McCaughtry, 539 F.3d 766, 774 (7th Cir. 2008)). As for state court factual determinations,
they are presumed correct unless Evans can rebut them with clear and convincing evidence.
Ebert, 610 F.3d at 411; 28 U.S.C. § 2254(e)(1).
In determining that Evans’ convictions were supported by sufficient evidence, the
state court of appeals applied the standard set forth in Poellinger. 153 Wis. 2d at 507. The
Seventh Circuit Court of Appeals held that that standard to be the same as the standard for
sufficiency challenges recognized by the United States Supreme Court. Adams v. Bertrand,
453 F.3d 428, 432 (7th Cir. 2006). Moreover, the Supreme Court advises that when
reviewing sufficiency of the evidence claims, federal courts should consider whether the
evidence viewed in the light most favorable to the prosecution, permits any reasonable trier
of fact to find the essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 441 U.S. 207, 319 (1979). This is the same standard applied by the state court.
Because Evans chose not to rebut the state court’s factual findings, the court must
determine only whether the state court’s application of the correct law to the facts was
reasonable. The state court concluded the evidence was sufficient for the jury to draw a
reasonable inference that Evans and Sain had robbed Anderson. Admittedly, the evidence
against Evans was entirely circumstantial. But the number of circumstances pointing to
Evans and Sain as the perpetrators is substantial. Evans has not shown that this conclusion

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was an unreasonable application of the law to the facts. Further, a review of the record
supports the conclusion that the state court’s decision was a reasonable application of the
law to the facts. Thus, this court must defer to the decision of the state court and deny
Evans’ petition for a writ of habeas corpus.
Under Rule 11 of the Rules Governing Section 2254 Cases, the court must issue or
deny a certificate of appealability when entering a final order adverse to petitioner. To
obtain a certificate of appealability, the applicant must make a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Tennard v. Dretke, 542 U.S. 274,
282 (2004). This means 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.” Miller-El v. Cockrell,
537 U.S. 322, 336 (2003) (internal quotations and citations omitted).
Given that the evidence was wholly circumstantial, reasonable jurists may debate the
decision that Evans’s custody is constitutional and a certificate of appealability will issue.

ORDER
IT IS ORDERED THAT:
1. The petition of Tommie E. Evans for a writ of habeas corpus (dkt. 1) pursuant to
28 U.S.C. § 2254 is DENIED. The clerk of court is directed to enter judgment for
respondent and close this case.
2. Evans’ request for a certificate of appealability is GRANTED.
Entered this 25th day of October, 2011.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
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