Hashim, A'Kinbo v. Wall, Edward et al

Filing 32

ORDER denying 1 Petition for Writ of Habeas Corpus; denying 16 Motion to Supplement Petition, 22 Motion to Strike. Signed by District Judge Barbara B. Crabb on 2/26/2014. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A’KINBO J.S. HASHIM
(f/k/a JOHN D. TIGGS, JR.),

OPINION AND ORDER

Petitioner,

13-cv-65-bbc

v.
MICHAEL BAENEN,
Respondent.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Petitioner A’kinbo J.S. Hashim, a/k/a John D. Tiggs, a prisoner at the Green Bay
Correctional Institution, has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254
regarding the revocation of his probation. The petition has now been fully briefed. Petitioner
has also filed motions to supplement his petition and to strike portions of respondent’s
answer. Because none of petitioner’s arguments about the inadequacy of his revocation
proceedings or ineffectiveness of his revocation counsel have merit, I will deny the petition.
Additionally, I will deny his motions to supplement his petition and to strike portions of
respondent’s answer.
From the materials submitted by the parties and state court records available
electronically, I find the following facts.

FACTS
On April 9, 1996, petitioner was sentenced to an indeterminate prison term of 112
months on one armed robbery charge and an imposed and stayed term of 15 years, subject

to 15 years of probation, on a second armed robbery charge. On October 2, 2003, petitioner
was sentenced to two years of initial confinement and three years of extended supervision
on a charge of battery by a prisoner, with the sentences to run consecutively to the armed
robbery sentence. In December 2007, petitioner was released to serve his terms of probation
and extended supervision.
On June 25, 2008, petitioner was arrested on allegations by Jason Briggs, aged 17,
that petitioner battered him and forced him to participate in oral sex. Petitioner was
interrogated by Waukesha Police Detective Richard Haines. After the interrogation, Haines
informed petitioner’s probation agent of the arrest; the agent decided to have petitioner
detained on a probation hold, and revocation proceedings were initiated. At some point
following his detention, petitioner told his probation agent that he wanted to waive the
preliminary and final revocation hearings, but the agent would not accept his waiver because
she thought he was too upset at that time to waive his rights.
On July 22, 2008, a preliminary revocation proceeding was held, with courtappointed counsel representing petitioner.

The Division of Community Corrections

recommended revocation of petitioner’s term of probation on his second 1996 armed
robbery conviction and his extended supervision on his 2008 battery of a prisoner
conviction. The division’s magistrate found probable cause to detain petitioner regarding
the new charge of oral sex, but not for the charge of battery. Petitioner remained in custody
pending the final hearing. He received a document stating that the department intended to
pursue revocation on the second count, utilizing additional evidence.

2

Petitioner’s final revocation hearing took place on February 5, 2009. Petitioner’s
probation agent introduced evidence, including photographs that had not been used in the
preliminary hearing, and elicited testimony from Detective Haines and alleged victim Briggs.
The administrative law judge found as follows:
Mr. Hashim did not dispute the fact that he took Mr. Briggs to his residence
on the date in question, nor does he dispute the fact that he kissed/ "made out"
with Mr. Briggs. Mr. Hashim claims that Mr. Briggs and he gave each other
hickeys and that this contact was consensual. However, Mr. Hashim denies
engaging in oral sex with Mr. Briggs.
Mr. Briggs appeared at the hearing and testified that on the occasion in
question, he spoke to Mr. Hashim, because he believed Mr. Hashim was a
lawyer. Mr. Briggs testified that he got into a white Cadillac with Mr. Hashim
and that instead of driving him home, Mr. Hashim drove him to a secluded
location where he asked Mr. Briggs if he had ever been seduced by a man
before. Mr. Briggs testified that Mr. Hashim then bit his neck. Mr. Briggs
testified that Mr. Hashim pulled out his, Mr. Briggs's penis, and put his, Mr.
Hashim's, mouth on it. Mr. Briggs testified that he was 17 years-old at the
time and did not give Mr. Hashim consent to do this.
***
Mr. Briggs gave very credible testimony. Accordingly, it is found that Mr.
Hashim violated his rules of supervision by sexually assaulting Mr. Briggs as
asserted in allegation one.
***
Mr. Briggs testified that after performing oral sex on him, Mr. Hashim the[n]
drove to his, Mr. Hashim's residence. Mr. Briggs testified that Mr. Hashim
brought him to the basement room where Mr. Hashim resided. Mr. Briggs
testified that Mr. Hashim had him take his pants off. Mr. Briggs testified that
Mr. Hashim came from behind and hit him with what felt like a belt. Mr.
Briggs testified that it hurt and that he said something like, "ow".
***

3

Mr. Briggs gave credible testimony. Accordingly, it is found that Mr. Hashim
violated his rules of supervision by battering Mr. Briggs, as asserted in
allegation two.

Dkt. #17, Exh. A at 2-3. The administrative law judge stated that petitioner should begin
serving his 15-year sentence for armed robbery and should be returned to court for
sentencing on the 2008 battery by a prisoner conviction.
Petitioner raised the issues that are the subject of this federal habeas proceeding in
two ways. First, he appealed the administrative decision revoking his probation in certiorari
proceedings in the Circuit Court for Grant County, which affirmed the revocation on
October 16, 2009. Petitioner appealed that decision, but it was affirmed on October 20,
2011 by the Wisconsin Court of Appeals.

The Wisconsin Supreme Court denied

petitioner’s petition for review on April 13, 2012.
Also, petitioner filed a petition for writ of habeas corpus in the Circuit Court for
Waukesha County, alleging that he had received ineffective assistance of counsel in the
revocation proceedings.

(In Wisconsin, claims for ineffective assistance of revocation

counsel cannot be brought in certiorari actions, and instead are reviewable in state habeas
corpus proceedings. State ex rel. Stokes v. Jenkins, 2010 WI App 120, ¶5, 329 Wis. 2d 269,
789 N.W.2d 753; State v. Ramey, 121 Wis. 2d 177, 182, 359 N.W.2d 402, 405 (Wis. Ct.
App. 1984).) After his petition was denied by the circuit court, the Wisconsin Court of
Appeals affirmed the decision on June 8, 2011, and the Wisconsin Supreme Court denied
petitioner’s petition for review on December 1, 2011.

4

OPINION
Petitioner brought the following ten claims in his petition:
•

the department acted arbitrarily by refusing to accept his attempted
waiver of the preliminary and final revocation hearings;

•

the department lost competency to proceed by not holding the
preliminary hearing within 15 days;

•

the department failed to act according to law when it proceeded on the
battery violation after the magistrate did not find probable cause for it
at the preliminary hearing;

•

the department acted arbitrarily by failing to conduct an independent
investigation;

•

the department failed to act according to law when it failed to record
or transcribe the preliminary hearing or to provide either a DVD or
transcript of petitioner’s police interview that was relied upon at the
preliminary hearing;

•

the administrative law judge acted arbitrarily or contrary to law when
he refused to allow petitioner to represent himself at the final hearing;

•

the administrative law judge deprived petitioner of his right to impeach
the 17-year-old victim by refusing to allow petitioner to present
evidence about the victim’s prior criminal convictions;

•

the administrative law judge denied petitioner the right to fully testify
in his defense;

•

the administrative law judge acted contrary to law by soliciting
additional evidence after the hearing; and

•

petitioner received ineffective assistance of counsel in the revocation
proceedings, contributing to many of the errors stated in the abovelisted claims.

However, in his opening brief, petitioner developed only several of these claims, all but one
relating to his allegations of ineffective assistance of counsel:
5

(1) the department acted arbitrarily by refusing to accept his attempted waiver
of the preliminary and final revocation hearings;
(2) he received ineffective assistance of counsel when counsel allowed the
department to hold the preliminary hearing after 15 days, after it no longer
had jurisdiction to do so;
(3) he received ineffective assistance of counsel when counsel allowed the final
revocation proceeding to include the battery violation after the magistrate did
not find probable cause for it at the preliminary hearing;
(4) he received ineffective assistance of counsel when counsel allowed the
department to fail to preserve the record created at the preliminary hearing;
and
(5) he received ineffective assistance of counsel when counsel “chose to
repudiate an investigation” and allowed the department to do the same,
harming petitioner’s ability to defend the revocation, particularly by
impeaching witnesses.
Because it is petitioner’s burden to show that he is entitled to habeas relief, I conclude that
he has waived the issues raised in his petition that he did not develop in his opening brief.
Casna v. City of Loves Park, 574 F.3d 420, 427 (7th Cir. 2009) (arguments not raised in
opening brief are waived).

Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir. 2002)

(appellant waived constitutional claims by omitting them from brief, thereby forfeiting claim
to collateral relief). He may proceed only on the five claims set out above.
The federal statute governing petitions for writs of habeas corpus, 28 U.S.C. § 2254,
requires a "highly deferential" standard of review. Woodford v. Visciotti, 537 U.S. 19, 24
(2002) (internal quotation and citation omitted). Under 28 U.S.C. § 2254(d), a district
court may not grant a state prisoner's petition
with respect to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim —
6

(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.
This provision means that on habeas review, federal courts are usually limited to a
deferential review of the reasonableness of a state court decision, rather than its absolute
correctness. E.g., Harrington v. Richter, 131 S. Ct. 770, 785 (2011).
For purposes of reviewing the reasonableness of the state court’s decision, “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. The
relevant state court decisions for this court’s review are the Wisconsin Court of Appeals’
decisions, because the court of appeals was the last state court to address petitioner’s claims
on the merits. Stevens v. McBride, 489 F.3d 883, 902 n.2 (7th Cir. 2007) (“For purposes
of our review . . . the operative state-court decision ‘is that of the last state court to address
the claim on the merits.’”) (quoting Garth v. Davis, 470 F.3d 702, 710 (7th Cir. 2006)).

A. Attempted Waiver of the Revocation Proceedings
First, petitioner argues that he had a due process right to waive the revocation
proceedings and, had this right been recognized, he would be facing a much shorter sentence.
Petitioner seems to think that if he had been allowed to waive the proceedings, the state
would have been precluded from requiring him to serve his 15-year imposed and stayed
7

sentence for armed robbery. Relying on the Department of Corrections’ “revocation matrix”
under which the department’s usual recommendation for offenses against bodily security is
a term of 21 months and 7 days, he says that his probation agent was prepared to make that
recommendation at the time petitioner sought waiver of the hearings, because the agent was
unaware of the imposed and stayed 15-year sentence on the second armed robbery charge
from 1996. Petitioner misconceives his situation. Under Wis. Stat. § 973.10(2)(b), when
an offender is revoked on a “imposed-and-stayed” sentence, the Department of Corrections
is directed to order the offender directly to prison to begin serving the sentence previously
imposed. It is unlikely that a probation officer’s lack of knowledge of the stayed sentence
would bar the state from following its usual procedure. Petitioner has not cited any instance
in which this has happened.
Moreover, there is no reason to believe that petitioner has a federal due process right
to waive his probation hearings. He has not cited any authority that identifies such a right
and I can locate none. Unless he has a federal claim at stake, he has no right to federal
habeas relief. Perruquet v. Briley, 390 F.3d 505, 511 (7th Cir. 2004) (“remedial power of a
federal habeas court is limited to violations of the petitioner's federal rights, so only if a state
court's errors have deprived the petitioner of a right under federal law can the federal court
intervene.”).
Even if petitioner had such a right, the state court of appeals concluded that he was
not harmed by his agent’s decision to refuse his waiver:
We question the factual basis for Hashim's premise that he would have
been likely to receive a lesser sentence if he had been allowed to waive his
8

hearings immediately. First, the fifteen-year term for the armed robbery charge
had already been imposed in 1996; that sentence automatically became
effective upon revocation. Second, the ALJ explicitly rejected the Department's
recommendation on the battery charge as inadequate, and would not have been
bound to follow that recommendation just because Hashim had waived one or
both of his hearings.
In any event, we are not persuaded that it was arbitrary for the
probation agent to refuse to accept Hashim's immediate waiver request when
she believed that he was in too emotional a state to make the decision, and she
did not even have the reincarceration data with her to fill out the form. Hashim
could have renewed his request at the beginning of either hearing, and did not
do so.
Dkt. #1, Exh. A at 4.
There is nothing unreasonable about this ruling. Moreover, the state court reasonably
found that petitioner could have later waived his right to the hearings but chose not to.

B. Ineffective Assistance of Counsel
All of petitioner’s remaining claims have to do with ineffective assistance of counsel
at his probation proceedings. The Wisconsin Court of Appeals considered these claims in its
June 8, 2011 decision affirming the denial of his petition for a state writ of habeas corpus,
using the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Before
addressing the merits of these claims, I note that petitioner has filed a motion to strike
portions of respondent’s answer, dkt. #22, on the ground that respondent failed to follow
Rule 5(b) and (d) of the Rules Governing Section 2254 Cases by not responding to his claims
of ineffective assistance of counsel.

He believes that his allegations on that issue should

therefore be considered uncontested.

9

1. Motion to strike
Petitioner starts out by arguing that respondent failed to comply with Rule 5(b)
because he did not address petitioner’s allegations about ineffective assistance in the answer.
Rule 5(b) states, “The answer must address the allegations in the petition. In addition, it
must state whether any claim in the petition is barred by a failure to exhaust state remedies,
a procedural bar, non-retroactivity, or a statute of limitations.”
In his answer, respondent denied that petitioner is entitled to habeas relief on his
ineffective assistance of counsel claims, stating, “This claim is not properly presented in
Hashim’s present petition because the claim challenges a different state case with a different
underlying judgment of conviction, court of appeals decision and supreme court order
denying review.” Dkt. #17 at 11. In his brief in opposition to the petition, respondent states
that he thought petitioner was referring to counsel from a different case, when in reality the
lawyer mentioned by petitioner, Douglas Bihler, was petitioner’s attorney at the preliminary
stages of the revocation. (Ultimately, petitioner was represented by three different lawyers
at different stages of the revocation proceedings).
Respondent’s answer is somewhat puzzling. Even if he had been correct that Bihler
did not serve as counsel in the revocation at issue, it is clear from the petition that petitioner
believes all three of his attorneys were ineffective, not just Bihler. Nonetheless, I see no
reason to grant petitioner’s request to consider his ineffective assistance of counsel claims
“unopposed,” when it is clear from other portions of the answer that respondent does not

10

believe that any of counsel’s alleged deficiencies prejudiced petitioner. As discussed further
below, respondent disputes all of petitioner’s assertions about the underlying errors in the
proceedings that petitioner believes could have been avoided by proficient counsel.
Petitioner argues also that respondent failed to comply with Rule 5(d) by failing to
submit copies of the briefs and decision from the appeal of the habeas corpus proceedings in
Waukesha County at which petitioner’s ineffective assistance of counsel claims were
addressed. The only such materials respondent submitted with his answer were documents
pertaining to the other ruling petitioner has challenged in this case, which is the appeal of the
certiorari proceedings from Grant County.
Petitioner does not cite any authority suggesting that this failure should result in
respondent’s forfeiture of his defense of these claims, and I can locate none. The most I
might do is ask the state to provide these documents, but it is unnecessary in this case;
petitioner has already provided the court a copy of the court of appeals order affirming the
Circuit Court for Waukesha County and I can locate the state’s brief on the Wisconsin Court
of Appeals Access electronic database. I see no reason to delay disposition of this case to
obtain petitioner’s state brief when respondent is not asserting any procedural barriers that
might require delving into the parties’ appellate briefs.

Moreover, petitioner has fully

outlined his claims in both his petition and brief in this court. Accordingly, I will deny his
motion to strike.

11

2. Merits
Under Strickland, a petitioner seeking to prove ineffective assistance of counsel must
establish deficient performance and resulting prejudice. Id. at 690-92. To show deficient
performance, the petitioner must point to specific acts or omissions that were “outside the
wide range of professionally competent assistance.” Id. at 690. For its part, the court must
“strongly presume[] [that counsel] rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Id. To establish prejudice, a
petitioner “must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
The state court of appeals denied petitioner’s ineffective assistance claims, stating as
follows:
Tiggs was on probation when he was charged with sexually assaulting and
battering a minor. Tiggs admitted to having sexual contact with the minor, and
his probation was revoked.
***
Tiggs asserts various ways in which the circuit court erred when it
denied his habeas petition. The record shows, however, that Tiggs admitted to
the conduct that led to his probation being revoked. Consequently, Tiggs did
not and cannot establish that he was prejudiced by any alleged errors
committed by his attorneys.
Dkt. #1, Exh. #1B at 2-3.
It is not clear whether the court of appeals’ decision was based on a reasonable
determination of the facts. Although the factual basis for the conclusion that petitioner was
not prejudiced by his revocation counsel’s performance hinged on the court’s determination

12

that “Tiggs admitted to the conduct that led to his probation being revoked,” this factual
finding is not borne out by the revocation hearing record. According to the administrative
law judge, petitioner was charged with (1) performing oral sex on 17-year-old Jason Briggs;
and (2) striking him with a leather belt. At the hearing, the only testimony concerning
petitioner’s supposed admission to this conduct came from Detective Haines, who testified
as follows:
Q: During [Haines’s conversation with petitioner], did he admit to having
sexual contact with Jason Briggs?
[Haines]: He did.
Q: And how did he define that sexual contact?
[Haines]: He stated that he had done hugging, kissing and he stated that he
had both touched Mr. Briggs' penis and had Mr. Briggs touch his penis as well.
Trans. of Revoc. Hearing, Dkt. #17 Ex. E at 80.
Although my review of the record does not reveal a copy of the conditions of
petitioner’s probation, one of the standard terms of probation enumerated in Wisconsin
Administrative Code § DOC 328.04(3) is to “Avoid all conduct which is in violation of
federal or state statute . . . .” Oral sex with a 17-year-old is a class A misdemeanor in
Wisconsin. Wis. Stat. § 948.09 (titled “Sexual intercourse with a child age 16 or older); §
948.01(6) (term “sexual intercourse” includes oral sex). From my review of the Wisconsin
statutes, it appears that mere “sexual contact” with a 17-year-old—for example, petitioner’s
admission that he touched the 17-year-old’s penis—does not violate Wisconsin law. (Wis.

13

Stat. 948.02, titled “Sexual assault of a child,” covers sexual intercourse and sexual contact
with children age 16 and younger.)
Not only would it be a stretch to interpret Haines’s testimony as indicating that
petitioner admitted to performing oral sex on Briggs, but petitioner’s own testimony at the
hearing directly contradicted Haines’s. As the administrative law judge stated, petitioner
denied engaging in oral sex with Briggs.
However, even assuming that the court of appeals’ decision was based on an
unreasonable determination of the facts, that does not mean that petitioner is entitled to
habeas relief. Rather, this court must perform a de novo review (meaning a review without
deference to the state court of appeals) of petitioner’s ineffective assistance of counsel claims.
Carlson v. Jess, 526 F.3d 1018, 1024 (7th Cir. 2008) (“Because the trial court based its
decision on an unreasonable factual determination, the substantive merits of Carlson's claim
are analyzed under the pre-AEDPA standard—that is, de novo—because there is no state court
analysis to apply AEDPA standards to.”) (citing Conner v. McBride, 375 F.3d 643, 655 n.5
(7th Cir. 2004)). After performing this review, I conclude that petitioner has not shown that
he was denied the effective assistance of counsel.
Petitioner’s problem is that he has not shown that he was prejudiced by the actions
of counsel raised in his claims. For starters, the first two of petitioner’s claims rest on his
misunderstanding of Wisconsin law.

He argues that counsel erred in (1) allowed the

department to hold the preliminary hearing after 15 days, which petitioner believes means
that it no longer had jurisdiction to revoke him; and (2) in allowing the final revocation

14

proceeding to include the battery violation after the magistrate did not find probable cause
for it at the preliminary hearing.

However, a failure to hold the preliminary revocation

hearing within the 15-day deadline set out in Wis. Stat. § 302.335(2)(a) does not divest the
Department of Corrections of jurisdiction over the revocation proceedings. State ex rel. Jones
v. Division of Hearing & Appeals, 195 Wis. 2d 669, 673, 536 N.W.2d 213, 215 (Ct. App.
1995). Additionally, it is not necessary that probable cause for each alleged probation
violation be found at the preliminary hearing. If evidence is adduced at the final hearing to
support all of the charges, all of them may be considered. State ex rel. Flowers v. Department
of Health and Social Services, 81 Wis. 2d 376, 392, 260 N.W.2d 727, 736-37 (1978).
Therefore, petitioner would not be entitled to habeas relief on these claims even if counsel
had been constitutionally ineffective in the preliminary stages of the proceedings.
Petitioner summarizes his final and interrelated two claims as follows:
Mr. Hashim received ineffective assistance of revocation counsel when
[counsel] “failed to enter an objection to the department’s decision not to
preserve the record created during the preliminary hearing and subsequently
chose to repudiate an investigation as did the department . . . which effectively
impeded Mr. Hashim to effectively impeach witnesses and defend against the
revocation allegations.
Pet.’s Br, dkt #21 at 53.

It is somewhat difficult to track the argument about the

“preservation” of the preliminary hearing record. Petitioner stated in his petition that the
revocation hearing record did not contain a transcript from the preliminary hearing or a
transcript of the DVD recording of petitioner’s June 25, 2008 interrogation by Detective
Haines. Petitioner seems to be arguing that counsel’s failure to insure that the preliminary
hearing record was preserved hurt him in two ways: (1) it prevented a proper challenge to
15

the adequacy of the preliminary hearing; and (2) it resulted in the omission of exculpatory
evidence from the record.
The flaw in the first argument is that petitioner has no evidence that the preliminary
proceedings were defective in ways that would have resulted in the dismissal of the revocation
proceedings and his release from custody. As explained above, petitioner cannot succeed on
his arguments about the state’s failure to meet the 15-day deadline for the preliminary
hearing set forth in Wisconsin law or the reinstatement of the battery charge at the final
hearing.
Petitioner’s second argument that exculpatory evidence was omitted from the record
is just a different way of phrasing his final habeas claim: counsel failed to undertake an
adequate investigation, which impeded his ability to defend against the revocation. What the
claim boils down to is petitioner’s assertion that his counsel failed to adduce evidence that
would have led to a different result at his revocation proceeding.
In support of this argument, petitioner argues first that counsel should have introduced
a DVD recording of petitioner’s June 25, 2008 interrogation by Haines, which petitioner
believes could have impeached Haines’s hearing testimony and Briggs’s version of events.
Neither party has made the DVD available to this court, but petitioner includes a purported
excerpt from the transcript of the interrogation, which matches the excerpt contained as an
exhibit to petitioner’s brief in his certiorari appeal, dkt. #17, Exh. D at 56. Petitioner asserts
that during the interrogation, he stated that he and Briggs kissed each other, leaving “hickeys”
on each other’s necks, thus arguably undermining Briggs’s story that the encounter was

16

nonconsensual. Petitioner believes that it would impeach the hearing testimony in which
Haines testified that he did not recall seeing marks on petitioner’s neck or remember
petitioner’s saying that Briggs had given him hickeys. According to petitioner’s version, when
he stated that Briggs gave him hickeys, Haines looked closer and stated, “I see a little
something there. Right here.”
As a general rule, failing to present potentially exculpatory evidence can constitute
deficient performance by a lawyer. In this case, however, the state has quoted testimony from
Detective Haines’s questioning of petitioner in which petitioner arguably admits to touching
Briggs’s penis with his mouth. Such testimony would not have favored petitioner, making
it obvious why counsel did not present it (or if he was not aware of it, why the omission did
not prejudice petitioner).
Det. Haines: At any point did [Jason] ever touch your, ah, um, your intimate
part, your penis?
[Petitioner]: A couple of times, yes.
***
Det. Haines: OK. And um at some point did you touch his intimate part, either
with your ah hands, your mouth, uh –
[Petitioner]: Umph.
Det. Haines: What?
[Petitioner]: Yes.
Det. Haines: You did. OK, with your hand, and your mouth?
[Petitioner]: M-hmm.

17

Det. Haines: I’m sorry, say that again please.
[Petitioner]: M-hmm. Yes.
State’s Nov. 2, 2010 Br. at 11, Hashim v. Murphy, Case No. 2010AP1376, docket available
at wscca.wicourts.gov (last visited Feb. 18, 2014). Petitioner does not deny that the DVD
includes this testimony. Because oral sex with a 17-year-old is a class A misdemeanor in
Wisconsin, an admission to such acts would have constituted a violation of probation and
triggered the 15-year sentence in the armed robbery case.

Wis. Stat. § 948.09; §

973.10(2)(b) (upon revocation of a “imposed-and-stayed” sentence, Department of
Corrections orders offender directly to prison to begin serving sentence court previously
imposed). Therefore, counsel could not have been constitutionally ineffective in failing to
present petitioner’s DVD testimony since it would have only served to implicate petitioner
in the commission of a crime.
Next, petitioner argues that counsel did not obtain the DNA test results from neck and
penile swabs, which indicated petitioner as the source of DNA on Briggs’s neck bites, but
were otherwise inconclusive.

It is not obvious that such evidence would have helped

petitioner defend against revocation and he has not explained why it would have. This is not
a case of mistaken identity; petitioner admits he was with Briggs that night and engaged in
contact with him. In any case, petitioner does not mention that the DNA report is dated
May 21, 2009 or explain how it could have been available for the February 2009 revocation
hearing.

18

Petitioner argues that counsel did not inquire into Briggs’s criminal background and
exploit it in cross-examination to undermine Briggs’s credibility. However, this is not borne
out by the record, which shows that counsel asked Briggs about his criminal record but was
limited by the administrative law judge.
Q: You . . . You in fact have a sentencing hearing tomorrow, don't you?
[Briggs]: Yes, I do.
Q: To (inaudible) these . . . And that incident of which you're being sentenced
on tomorrow happened back in May of last year, didn't it?
[Briggs]: Around that time, yes.
Q: Okay.
ADMINISTRATIVE LAW JUDGE: All right, now I don't want to spend too
much time on Mr. Briggs' legal difficulties unless whatever he has previously
been convicted of has something to do with his honesty.
[Petitioner’s counsel]: It goes to a potential motive to why he would want to
testify against [petitioner].
ADMINISTRATIVE LAW JUDGE: Okay. . . .
***
Q: And you've already been sentenced on a different case, a misdemeanor case,
correct?
[Briggs]: Yes.
Q: And that sentence, you received probation?
[Briggs]: Yes. I just received a year of probation.
And now you're being sentenced on a new case tomorrow, correct?
[Briggs]: Yes.
19

Trans. of Revoc. Hearing, Dkt. #17 Ex. E at 56-57. Petitioner does not explain what counsel
should have done differently, particularly in light of the administrative law judge’s decision
to limit such testimony. State v. Sohn, 193 Wis. 2d 346, 353, 535 N.W.2d 1, 3 (Wis. Ct.
App. 1995) (scope of inquiry into criminal record is limited; “The witness may be asked if he
or she has ever been convicted of a crime and, if so, how many times. If the witness's answers
are truthful and accurate, then no further inquiry may be made.”) (citations omitted).
Finally, petitioner argues that counsel did not impeach Briggs’s version of events in
several inconsequential ways. For example, petitioner states that counsel failed to impeach
Briggs with a police report that placed petitioner at a basketball court between 10:24 and
10:57 p.m. the night of the assault, which contradicts testimony from Briggs that the assault
occurred around 10:30 to 11:00 p.m. (According to petitioner, Briggs’s testimony was given
in petitioner’s preliminary hearing in the corresponding criminal case regarding this incident.
This testimony was not included in the record before this court, but apparently was included
in the revocation record.) I cannot see how such a minor time discrepancy could have
prejudiced petitioner, who, after all, admitted to having been with Briggs that night.
Moreover, on cross-examination, counsel elicited testimony from Briggs that he and
petitioner met after 11:00 that night, so counsel actually accomplished what petitioner is
claiming he failed to do. Trans. of Revoc. Hrg., Dkt. #17 Ex. E at 61-62.
Additionally, petitioner believes that counsel failed to impeach Briggs’s testimony
about why he met with petitioner in the first place. Briggs stated that he had legal problems
and that petitioner’s son suggested that Briggs talk to petitioner because he was a lawyer.

20

Petitioner (who is not a lawyer) believes that counsel should have introduced testimony from
petitioner’s criminal preliminary hearing in which Briggs testified that petitioner gave him a
business card that stated that petitioner was chief operating officer of a legal research and
analysis company, not that he was a lawyer. Even if this is true (petitioner’s criminal
preliminary hearing is not part of the record in this court), it still backs Briggs’s story that he
sought out petitioner’s legal advice and supports the administrative law judge’s conclusion
that petitioner “took advantage of a 17 year-old man with legal difficulties.” In short, it is
difficult to fathom how any of the discrepancies raised by petitioner could have affected the
outcome of the revocation proceedings. The administrative law judge heard testimony from
both petitioner and Briggs, was given reasons to doubt Briggs’s testimony, such as his criminal
record and discrepancy of the timing in meeting with petitioner, and still concluded that
Briggs “gave very credible testimony.” Because petitioner has not shown that he received
ineffective assistance of counsel, his petition must be denied.

C. Motion to Supplement Petition
Finally, I note that petitioner has filed a document titled “Notice of Motion and
Motion for an Order Awarding Partial Habeas Corpus Relief for 114.9 Months
Postrevocation Sentence Credit,” dkt. #16, which I construe to be an attempt by petitioner
to supplement his petition to include new claims regarding what he believes to be an
erroneous sentence. I need not consider whether to allow petitioner to amend his petition
to include this claim because amendment would be futile.

21

Petitioner’s argument for receiving 114.9 months of credit on his 15-year sentence for
the second armed robbery is not well developed and difficult to understand, but he seems to
be saying that he should get credit for the prison time he served on his first armed robbery.
However, his judgment of conviction on the second armed robbery shows that his 15-year
imposed-and-stayed sentence for the second armed robbery was to run consecutively to the
first armed robbery. Petitioner cannot receive credit on his sentence after revocation for the
time he served on a separate preceding sentence. State v. Boettcher, 144 Wis. 2d 86, 87, 423
N.W.2d 533, 534 (1988) (“Credit is to be given on a day-for-day basis, which is not to be
duplicatively credited to more than one of the sentences imposed to run consecutively.”);
State v. Jackson, 2000 WI App 41, ¶ 19, 233 Wis. 2d 231, 607 N.W.2d 338 (“The core idea
of Boettcher is that dual credit is not permitted where a defendant has already received credit
against a sentence which has been, or will be, separately served.”) (internal quotations
omitted).

D. 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. 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). Because petitioner has not shown such a denial, no certificate of appealability will
issue.

22

ORDER
It is ORDERED that
1. The petition for writ of habeas corpus filed by petitioner A’kinbo J.S. Hashim, a/k/a
John D. Tiggs, dkt. #1, is DENIED.
2. Petitioner’s motion to supplement his petition, dkt. #16, is DENIED.
3.

Petitioner’s motion to strike portions of respondent’s answer, dkt. #22, is

DENIED.
4. Petitioner is DENIED a certificate of appealability. If petitioner wishes, he may
seek a certificate from the court of appeals under Fed. R. App. 22.
Entered this 26th day of February, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

23