Orengo, Juan v. Meisner, Michael

Filing 45

ORDER dismissing 1 Petition for Writ of Habeas Corpus with prejudice. A certificate of appealability is DENIED. Signed by District Judge William M. Conley on 1/20/2015. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JUAN A. ORENGO,
Petitioner,

OPINION AND ORDER

v.

12-cv-890-wmc

LIZZY TEGELS, Warden,
Jackson Correctional Institution,
Respondent.

State inmate Juan A. Orengo has filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging his drug trafficking conviction in Milwaukee
County Case No. 03CF3178.

The respondent filed his answer and both parties

submitted briefing. Because Orengo is not entitled to the relief sought, his petition will
now be dismissed.

BACKGROUND
In Milwaukee County Case No. 03CF3178, Orengo was charged with two counts
of possession with intent to deliver greater than 200 grams of marijuana or THC and one
count of possession with intent to deliver greater than 40 grams of cocaine. He was also
charged with unlawful possession of a firearm as a previously convicted felon. The facts
underlying the offense and the charges have been summarized as follows:
In February of 2003, the police found marijuana and crack cocaine in
a bedroom closet of Orengo’s sister’s home. The crack cocaine was on a
plate that had Orengo’s fingerprint. The police also found his wallet with

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four identification cards in a dresser drawer in that bedroom, as well as a
loaded handgun under the mattress in that room. Orengo’s sister, Anna
Arias, told police that she used the bedroom, but that her brother, who had
moved in one week earlier, used the bedroom closet. In March of 2003,
police saw Orengo in the passenger seat of his girlfriend Jennifer Zaniewski’s
car. When police stopped the car, Orengo fled. The police caught Zaniewski
and another passenger trying to hide bags of marijuana and drug scales.
The State charged Orengo with possessing cocaine with intent to sell
the crack cocaine and the marijuana from the closet, and charged both
Orengo and Zaniewski with possessing with intent to sell the marijuana
found in Zaniewski’s car. Zaniewski plea-bargained her case and agreed to
testify against Orengo. Orengo pled not guilty. When the trial court granted
Orengo’s motion in limine to exclude evidence of the gun found in the
bedroom,
the
State
amended
the
complaint
to
add
a
felon-in-possession-of-a-weapon charge. After the State rested, however,
the trial court dismissed the gun charge because it determined that the State
had not proved that Orengo possessed the gun. The jury found Orengo
guilty of possessing with intent to sell the crack cocaine and the marijuana
from the closet, but acquitted him of possessing with intent to sell the
marijuana from Zaniewski’s car.
State v. Orengo, 2012 WI App 40, ¶¶ 2-3, 340 Wis. 2d 497, 812 N.W.2d 539 (Feb. 28,
2012). Consistent with the jury’s verdict, the circuit court sentenced Orengo to serve a
total of 12 years’ imprisonment, followed by a 6-year term of extended supervision.
In a postconviction motion, Orengo argued that he was denied effective assistance
of counsel at his trial. The circuit court denied that motion. On direct appeal, Orengo
argued that he was denied effective assistance of counsel at trial when his defense counsel
failed to impeach one of the State’s witnesses with evidence of a prior conviction for
disorderly conduct. He argued further that the trial court erred by allowing the State to
add a charge of felon in possession of a firearm shortly before trial, which allowed the jury
to hear evidence of his status as a previously convicted felon and evidence that a firearm

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was recovered near the drugs. The Wisconsin Court of Appeals rejected both arguments
and affirmed the conviction in an unpublished opinion, see State v. Orengo, Appeal No.
2007AP1954-CR (Feb. 5, 2009), and the Wisconsin Supreme Court denied his petition
for review.
Subsequently, Orengo filed a petition for collateral relief under Wis. Stat.
§ 974.06, alleging that his postconviction counsel was ineffective for failing to raise
claims of ineffective assistance of trial counsel in his original postconviction motion. In
that petition, Orengo argued that he was denied effective assistance of counsel at trial
when his attorney failed to seek severance of the firearm charge. Orengo argued further
that his trial counsel was ineffective for failing to object to prejudicial hearsay and seek a
mistrial based on that evidence.

The circuit court denied Orengo’s motion. The

Wisconsin Court of Appeals affirmed that decision, see State v. Orengo, 2012 WI App 40,
340 Wis. 2d 497, 812 N.W.2d 539 (Feb. 28, 2012), and the Wisconsin Supreme Court
denied his petition for review.
Orengo now contends that he is entitled to relief from his conviction under 28
U.S.C. § 2254 based on ineffective assistance of counsel at trial. In particular, Orengo
argues that his trial attorney was ineffective in failing to seek a severance of the firearm
charge.

He also argues trial counsel was ineffective in failing to object to prejudicial

hearsay and seek a mistrial based on that evidence.
Orengo’s claims are without merit.

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The respondent maintains that

OPINION
I.

Deferential Standard of Review
The grounds for relief raised by petitioner were adjudicated on the merits by the

circuit court, the Wisconsin Court of Appeals, and the Wisconsin Supreme Court, the
latter of which summarily denied review. When a state system issues multiple decisions,
a federal habeas corpus court typically considers “the last reasoned opinion on the claim.”
Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); see also Woolley v. Rednour, 702 F.3d 411,
421 (7th Cir. 2012) (unless a state court adopts or incorporates the reasoning of a prior
opinion, 28 U.S.C. § 2254 requires federal courts to review one state decision) (citation
omitted).

To the extent that the claim was addressed on the merits, petitioner must

show that its adjudication “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.” 28 U.S.C. § 2254(d)(1).
The standard outlined in § 2254(d)(1) is exacting and “highly deferential,” Burt v.
Titlow, — U.S. —, 134 S. Ct. 10, 15 (2013), demanding that state courts be given “the
benefit of the doubt.” Harrington v. Richter, — U.S. —, 131 S. Ct. 770, 786 (2011). To
prevail, “a state prisoner must show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Id. at 786-87.

A state court’s decision is deemed contrary to clearly

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established federal law if it reaches a legal conclusion in direct conflict with a prior
decision of the Supreme Court or reaches a different conclusion than the Supreme Court
based on materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 404-08
(2000). A state court unreasonably applies clearly established precedent if it identifies
the correct governing legal principle but unreasonably applies that principle to the facts of
the case.

See Brown v. Payton, 544 U.S. 133, 141 (2005).

This demanding standard

authorizes relief only in cases “where there is no possibility fairminded jurists could
disagree that the state court’s decision conflicts with [Supreme Court] precedents.”
Harrington, 131 S. Ct. at 786.

In addition to the “formidable barrier” posed by this

standard, Titlow, 134 S. Ct. at 16, the petitioner bears the burden of rebutting the state
court’s factual findings “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
Orengo maintains that he was denied effective assistance of counsel at his trial.
Claims for ineffective assistance of counsel are analyzed under the well-established
standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail under the
Strickland standard, a petitioner generally must demonstrate both constitutionally
deficient performance by counsel and actual prejudice as a result of the alleged deficiency.
See Williams v. Taylor, 529 U.S. 362, 390-91 (2000). “Unless a defendant makes both
showings, it cannot be said that the conviction . . . resulted from a breakdown in the
adversary process that rendered the result unreliable.” Strickland, 466 U.S. at 687.
To demonstrate deficient performance, the petitioner must show “that counsel’s
representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at

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687-88. Counsel’s errors must have been “so serious as to deprive the defendant of a fair
trial.” Id. at 687. “This means identifying acts or omissions of counsel that could not be
the result of professional judgment. The question is whether an attorney’s representation
amounted to incompetence under prevailing professional norms, not whether it deviated
from best practices or most common custom.” Sussman v. Jenkins, 636 F.3d 329, 349 (7th
Cir. 2011) (internal quotation marks and citations omitted).

To demonstrate actual

prejudice requires a defendant to demonstrate “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
Here, Orengo’s ineffective-assistance claims were rejected in a written opinion by
the Wisconsin Court of Appeals. A review of that decision reflects that the state court
accurately characterized Orengo’s claims and identified the correct legal standard
controlling his allegations of ineffective assistance. See State v. Orengo, 2012 WI App 40,
¶ 5, 340 Wis. 2d 497, 812 N.W.2d (Feb. 28, 2012) (applying the Strickland standard).
Thus, the central question here is not whether this court “‘believes the state court’s
determination’ under the Strickland standard ‘was incorrect but whether the determination
was unreasonable C a substantially higher threshold.’” Knowles v. Mirzayance, 556 U.S.
111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 478 (2007)). In addition,
“because the Strickland standard is a general standard, a state court has even more latitude
to reasonably determine that a defendant has not satisfied that standard.” Id. (citing
Youngblood v. Alvarado, 541 U.S. 652, 664 (2004)).

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Thus, this standard is “doubly

deferential” on habeas corpus review. Id.; see also Richter, 131 S. Ct. at 788 (emphasizing
that the standards created by Strickland and § 2254(d) are “highly deferential,” and
“‘doubly’ so” when applied in tandem) (citations and quotations omitted).

Each of

Orengo’s specific claims of ineffective assistance of counsel are addressed below under this
exacting standard of review.

II.

Ineffective Assistance of Counsel
A. Failure to File a Motion to Sever the Firearm Charge
Orengo contends that his trial attorney was deficient in failing to file a motion to

sever the firearm charge from the drug charges. The Wisconsin Court of Appeals rejected
this claim, finding that Orengo was not prejudiced by his attorney’s performance:
Wisconsin law recognizes that guns and drug dealers go together. See
State v. Guy, 172 Wis. 2d 86, 98, 492 N.W.2d 311, 316 (1992) (“[T]hose
involved in drug dealing often keep weapons handy.”); State v. Richardson,
156 Wis. 2d 128, 144, 456 N.W.2d 830, 836 (1990) (“drug dealers and
weapons go hand in hand”). Further, the trial court dismissed the gun
charge at the close of the State’s case because there was no evidence directly
connecting the gun to Orengo. What Orengo got was arguably even better
than a severance; the trial court put its imprimatur on his innocence of
unlawfully possessing the gun. There was no prejudice.
Orengo, 2012 WI App 40, ¶¶ 7-8, 340 Wis. 2d 497, 812 N.W.2d 539.
Similar to the cases cited by the court of appeals, the Seventh Circuit has
recognized that drug trafficking and firearm counts are “presumptively properly joined . . .
because ‘[p]ossession of firearms and drug trafficking are closely related.’” United States v.
Stokes, 211 F.3d 1039, 1042 (7th Cir. 2000) (citation omitted); see also United States v.

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Blanchard, 542 F.3d 1133, 1141 (7th Cir. 2008) (finding that joinder was proper where
evidence of both drugs and firearms offenses was recovered at the same time). Joinder of
such offenses is ordinarily proper because of the “natural inferences that may be drawn
from the contemporaneous possession of guns and drugs or drug paraphernalia: the
firearm is an indication of drug activity, and participation in drug trafficking supplies a
motive for having the gun.” United States v. Pigee, 197 F.3d 879, 891 (7th Cir. 1999)
(citations omitted). Because drug and firearm counts are commonly joined, Orengo does
not demonstrate that a motion to sever the firearm charge would have been successful if
one had been filed.
Even assuming that his counsel was deficient for failing to file a motion to sever
the drug and firearm charges in Orengo’s case (or perhaps for not pressing for dismissal of
that late charge in advance of trial for lack of evidence), the trial court dismissed the
firearm count after finding that there was no evidence linking Orengo to the weapon. By
contrast, there was substantial evidence linking Orengo to the drugs that were recovered by
police wholly apart from the gun’s presence. Based on this record, Orengo does not and
cannot establish that, but for the firearm charge, the result of his trial would have been
different or that it is more likely than not that he would have been acquitted of the drug
trafficking offenses. Therefore, Orengo neither demonstrates the requisite prejudice nor
establishes that the state court’s decision on this issue was an unreasonable application of
the Strickland standard.

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B. Failure to Object to Hearsay and Move for a Mistrial
Orengo contends that his trial attorney was deficient for failing to object to
prejudicial hearsay testimony from one of the State’s witnesses and to move for a mistrial
based on that testimony. The Wisconsin Court of Appeals expressly rejected this claim
as well, finding that Orengo was not prejudiced by the testimony or his attorney’s failure
to object:
Orengo contends that his trial lawyer gave him ineffective assistance
by not objecting to a police officer’s hearsay testimony, and also by not
asking for a mistrial because of that testimony. The hearsay came during the
cross-examination of Officer Michael Washington:
Q. Okay. And in the bedroom, southeast bedroom, was
there any kind of decor, decoration that would indicate
whether it was a male bedroom or a female bedroom?
A. Well, she [Anna Arias—Orengo’s sister] said it was
her bedroom but that he [Orengo] occupied the closet.
As we have seen, many things, other than the hearsay statement by
Orengo’s sister, connected him to the bedroom: his fingerprint on the plate
holding the crack cocaine and his wallet. Further, Zaniewski testified that
Orengo was using the closet. The hearsay was both de minimis and
cumulative. See Jones v. Dane County, 195 Wis. 2d 892, 936–937, 537
N.W.2d 74, 89 (Ct. App. 1995) (defendant is not prejudiced by the
admission of allegedly improper evidence that is cumulative).
Orengo, 2012 WI App 40, ¶¶ 10-11, 340 Wis. 2d 497, 812 N.W.2d 539.
A review of the record confirms that this other evidence linked Orengo to his
sister’s bedroom closet, where the drugs were found. The comment at issue was elicited
by defense counsel on cross-examination.

As Orengo concedes, defense counsel

presumably did not object because he feared it would merely highlight or emphasize the
officer’s comment.

While the officer should have known better and might have

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prompted an admonishment from the bench, the trial judge may also have come to a
similar conclusion about potentially highlighting this hearsay.
Even if counsel’s failure to object was deficient, Orengo does not show that the
result of his trial would have been any different.

As the state courts inferred, the

comment was not sufficiently prejudicial that a mistrial would have been required even if
a hearsay objection had been made and sustained. See State v. Bunch, 191 Wis. 2d 501,
506, 529 N.W.2d 923 (Ct. App. 1995); see also State v. Adams, 221 Wis. 2d 1, 17, 584
N.W.2d 695 (Ct. App. 1998) (“A mistrial is appropriate only when a ‘manifest necessity’
exists for the termination of the trial.”). In that respect, Orengo neither demonstrates
that he was prejudiced by counsel’s failure to object to the officer’s isolated comment, nor
that the state court’s decision resulted in an unreasonable application of the Strickland
standard. Because Orengo does not establish a valid claim for relief, his petition must be
denied.
III.

Certificate of Appealability
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. A
certificate of appealability will not issue unless the petitioner makes “a substantial
showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), which requires a
petitioner to demonstrate “that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Tennard v. Dretke, 542 U.S.
274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

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Under the

controlling standard, this requires a petitioner to show “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, 537 U.S. at 336.

Where denial of relief is based on

procedural grounds, the petitioner must show not only that “jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right,”
but also that they “would find it debatable whether the district court was correct in its
procedural ruling.” Slack, 529 U.S. at 484.
Although the rule allows a court to ask the parties to submit arguments on whether
a certificate should issue, it is not necessary to do so in this case. For the reasons already
stated, the court concludes that petitioner has not made a showing, substantial or
otherwise, that his conviction was obtained in violation of clearly established federal law
as decided by the Supreme Court. Because reasonable jurists would not otherwise debate
whether a different result was required, no certificate of appealability will issue.

ORDER
IT IS ORDERED that:
1. The federal habeas corpus petition filed by Juan A. Orengo is DENIED and
this case is DISMISSED with prejudice.

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2. A certificate of appealability is DENIED. If petitioner wishes he may seek
a certificate from the court of appeals under Fed. R. App. 22.
Entered this 20th day of January, 2015.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

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