Lepsch, Jeffrey et al v. Pollard, William

Filing 43

ORDER Adopting 38 Report and Recommendation as modified. Petitioner's objections (dkt. # 40 ) are OVERRULED. Petitioner's petition (dkt. # 1 ) is DENIED, and a certificate of appealability is DENIED. The clerk of court is directed to enter judgment. Signed by District Judge William M. Conley on 9/26/2023. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JEFFREY P. LEPSCH,
Petitioner,

OPINION AND ORDER

v.
17-cv-682-wmc
WILLIAM POLLARD,
Respondent.
Petitioner Jeffery P. Lepsch, through counsel, seeks collateral relief under 28 U.S.C.
§ 2254 from his 2013 convictions in La Crosse County Circuit Court. Magistrate Judge
Crocker entered a report and recommendation (“R&R”) that Lepsch’s petition be denied
on the merits.

(Dkt. #38.)

Because he has objected to the R&R’s “findings or

recommendations” (dkt. #40), which the court may “accept, reject, or modify, in whole or
in part,” my review is de novo. See 28 U.S.C. § 636(b)(1); Delgado v. Bowen, 782 F.2d 79,
82 (7th Cir. 1986). For the following reasons, the court will adopt, as modified, the R&R
and deny the petition without an evidentiary hearing. See Schriro v. Landrigan, 550 U.S.
465, 474 (2007) (evidentiary hearing is not required where the record precludes habeas
relief); Stechauner v. Smith, 852 F.3d 708, 721-22 (7th Cir. 2017) (no evidentiary hearing
allowed if § 2254(d) bars relief).

BACKGROUND1
Lepsch was charged with two counts of first-degree, intentional homicide, one count
of armed robbery with use of force, and one count of possession of a firearm by a felon.
(Dkt. #38 at 3.) Before jury selection, prospective jurors had to fill out a questionnaire.
(Id.) As relevant here, Question 30 asked them whether they would give a police officer’s
testimony more, less, or the same credibility as that of other witnesses. State v. Lepsch,
2017 WI 27, ¶ 18. In answer, jurors J.A. and D.M., who ended up sitting on the jury,
answered “more credibility.” Id., ¶ 18 & n.7. J.A. and D.M. also signed their respective
answers to the questionnaire under penalty of perjury. (Dkt. #38 at 3.)
Ultimately, the jury convicted Lepsch on all counts, Lepsch, 2017 WI 27, ¶ 2 n.2,
after which the circuit court judge imposed two terms of life imprisonment, 40-years
imprisonment on the armed robbery count, and 10-years imprisonment on the firearm
count -- all terms to be served consecutively. Id., ¶ 9. Lepsch filed a postconviction motion
for a new trial in the circuit court, which the court denied after holding an evidentiary
hearing under State v. Machner, 92 Wis. 2d 797. Id., ¶ 10. At that hearing, defense counsel
Vincent Rust testified about the defense’s jury selection strategy, explaining that he had
deliberately not questioned D.M. about his answer to Question 30 because he had also
written that he believed in facts and not people, and so indicated that he “might be
favorable” to the defense. (Dkt. #38 at 6-7.) As for J.A., Attorney Rust noted that he had

The court draws these facts from the R&R and the Wisconsin Supreme Court’s decision affirming
the denial of Lepsch’s postconviction motion for a new trial. Lepsch does not dispute the R&R’s
description of his claims or statement of the facts and procedure. Nor does Lepsch dispute the
R&R’s determination that he abandoned some of the claims on which the court initially allowed
him to proceed. (Dkt. #38 at 1-2 and n.1.)
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also written an answer on his questionnaire that he could be impartial, and Attorney Rust
believed from his answers overall that he could be an objective juror.

(Id. at 7.)

Accordingly, the state court of appeals affirmed. Lepsch, 2017 WI 27, ¶ 11.
The Wisconsin Supreme Court granted Lepsch’s petition for review, id., ¶ 12, where
Lepsch again argued that his jury included biased jurors D.M. and J.A., as well as that
defense counsel Rust was ineffective in failing to question either about their bias or to move
to strike them. (Dkt. #38 at 8.) However, the supreme court determined that Lepsch
failed to show any juror who sat on his case was biased, and therefore, also failed to show
that he was prejudiced by Attorney Rust’s allegedly deficient performance. Lepsch, 2017
WI 27, ¶ 37. As did the court of appeals, in reaching this conclusion, the supreme court
reasoned that even though J.A. and D.M. wrote about giving a police officer’s testimony
more credibility, “other aspects of the jury selection process” as already discussed above
showed that they were not biased. Id. ¶ 28.2 Furthermore, the court found significant that
J.A. and D.M. were both present when the jurors were questioned as a group, and Attorney
Rust discussed: (1) whether the police can make mistakes; (2) whether it is important for
law enforcement to follow procedures; (3) whether the police ever let bias interfere with
what they are looking for; (4) whether people tend to trust the police more than they
should sometimes; and (5) how to determine if a police officer has the right training or
experience. Id., ¶ 29. Similarly, the court noted, the state’s counsel told the prospective

For example, the supreme court again noted that: both J.A. and D.M. checked “No” on the
questionnaire next to the question, “Is there any reason why you could not be impartial in this
case?”; and elsewhere on his questionnaire, D.M. stated, “I believed in facts, not people.” Id.
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jurors that it wanted people who were fair and objective, then asked the prospective jurors
if anyone thought he or she could not be fair, to which no one answered. Id.
The Wisconsin Supreme Court also rejected Lepsch’s argument that federal law
required the circuit court to obtain a “final, unequivocal swearing by a juror that he or she
can set aside his or her beliefs and opinions and decide the case solely on the evidence”
because J.A. and D.M. wrote that they would give a police officer’s testimony more
credibility. Id. ¶ 33. Lepsch based this argument primarily on a statement by the United
States Supreme Court in Patton v. Yount, 467 U.S. 1025 (1984), that “in a ‘federal habeas
corpus case in which the partiality of an individual juror is placed in issue,’” the question
before the reviewing court “‘is plainly one of historical fact: did a juror swear that he could
set aside any opinion he might hold and decide the case on the evidence, and should the
juror’s protestation of impartiality have been believed.’” Lepsch, 2017 WI 27, ¶ 33 (quoting
Yount, 467 U.S. at 1036). However, the Wisconsin Supreme Court determined that this
statement does not “dictate[ ] a bright-line rule [to] be applied in cases involving a
defendant’s claim [that] he did not receive an impartial jury.” Id., ¶ 34. In support, the
court noted that despite making that statement in Yount, the U.S. Supreme Court went on
to reject the view of the lower federal court of appeals that “whether jurors have opinions
that disqualify them is a mixed question of law and fact,” such that “the presumption of
correctness due a state court’s factual findings under . . . § 2254(d) does not apply.” Lepsch,
2017 WI 27, ¶ 34 (quoting Yount, 467 U.S. at 1028-31, 1036).
Thus, the Wisconsin Supreme Court concluded the Yount court’s “focus . . . was not
the definition of the substantive standard [regarding juror bias], but instead the notion

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that application of the relevant standard was ‘not one of mixed law and fact’ and that ‘the
statutory presumption of correctness’ thus applied to the trial court’s determinations.” Id.
(quoting Yount, 467 U.S. at 1036-38). In addition, the state supreme court emphasized
Yount’s instruction that the real question on federal habeas review “is whether there is fair
support in the record for the state courts’ conclusion that the jurors . . . would be
impartial,” understanding that jurors “cannot be expected to invariably [ ] express
themselves carefully or even consistently,” and ambiguity alone is insufficient to overcome
the presumption that the trial court’s finding of a juror’s impartiality is correct. Id., ¶ 35
(quoting Yount, 467 U.S. at 1038-40). Finally, the supreme court noted that Lepsch had
failed to identify any subsequent U.S. Supreme Court case supporting his interpretation
of the statement he would emphasize from Yount. Id., ¶ 36.
Before this court, Lepsch contends that: (1) the empaneling of jurors J.A. and D.M.
violated his right to trial by an impartial jury; and (2) Attorney Rust provided ineffective
assistance because he failed to obtain an unequivocal declaration of impartiality from J.A.
and D.M. or move to strike them for cause, resulting in the seating of biased jurors. (Dkt.
#38 at 10.) Applying the general standards governing review of § 2254 petitions, Judge
Crocker rejected Lepsch’s reading of Yount and concluded that the U.S. Supreme Court has
never established that a trial judge must dismiss a juror for cause based on some arguably
equivocal answers, if finding them impartial overall.

(Id. at 10-16); see also Cage v.

McCaughtry, 305 F.3d 625, 626 (7th Cir. 2002) (concluding that the Supreme Court has
never established that a judge must dismiss a juror who has provided “potentially equivocal
assurances of impartiality during voir dire,” even if no lawyer objects). Judge Crocker also

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determined that the evidence “amply support[ed]” the Wisconsin Supreme Court’s
conclusion that Lepsch had failed to show that “J.A. or D.M.’s general beliefs about police
credibility were so irrational or unshakeable that they would be unable to put them aside
and judge the case based on the evidence.” (Dkt. #38 at 19.) As support, the judge relied
on much of the same evidence that the state supreme court noted in determining that other
aspects of the jury selection process showed that J.A. and D.M. were not biased. (See id. at
2-3.)3

OPINION
I. Lepsch’s Objections
Lepsch purports to raise seven objections to the R&R, but they largely overlap and
can be distilled down to basic objections to its principal determinations that: (a) the state
supreme court did not contradict or unreasonably apply federal law as articulated in Yount
or in concluding that he had failed to show that J.A. and D.M. were biased; and (b) his
trial counsel’s decision not to seek more explicit assurances of impartiality from these jurors
was entitled to deference under Strickland v. Washington, 466 U.S. 688 (1984). The court
will address these objections in turn.

The R&R also relied on other of J.A.’s statements in response to questions on other matters,
including that he knew his “personal opinions were not consistent with the beyond-a-reasonabledoubt standard” and “he would have to set his opinions aside and decide the case on the evidence
presented at trial.” (Dkt. #38 at 4 (citing dkt. #13-7 at 50-51).) Lepsch does not challenge these
findings.
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A.

Juror Bias

To begin, Lepsch argues that the U.S. Supreme Court’s decision in Wainwright v.
Witt, 469 U.S. 412 (1985), contradicts Judge Crocker’s reading of Yount. However, Witt
merely clarified that a prospective juror may be excluded for cause based on the juror’s
view on capital punishment if it “would prevent or substantially impair the performance of
his [or her] duties as a juror in accordance with his [or her] instructions and . . . oath.” Id.
at 424. Far from establishing that a trial court must obtain a sworn declaration from a
potentially biased juror, therefore, Witt actually reinforces Judge Crocker’s conclusion that
the party seeking the juror’s exclusion under Yount “must demonstrate, through
questioning, that the potential juror lacks impartiality.” Id. at 423. Similarly, while Lepsch
contends that several Seventh Circuit cases support his contrary reading of Yount, the U.S.
Supreme Court’s unambiguous holding obviously controls for purposes of § 2254(d)(1)
review. Parker v. Matthews, 567 U.S. 37, 48 (2012) (per curiam). Moreover, most of these
Seventh Circuit precedents also concluded that the appellant failed to show sufficient bias
to void a jury’s verdict. E.g., United States v. Klemis, 859 F.3d 436, 445-46 (7th Cir. 2017);
United States v. Taylor, 777 F.3d 434, 441 (7th Cir. 2015); Marshall v. City of Chicago, 762
F.3d 573, 576-77 (7th Cir. 2014); United States v. Allen, 605 F.3d 461, 465-66 (7th Cir.
2010). Thus, nothing in these decisions support revisiting the basic burden of proof that
Lepsch faced in state court or before Judge Crocker.
In fairness, the Seventh Circuit did reach an arguably different result in Thompson v.
Altheimer & Gray, 248 F.3d 621 (7th Cir. 2001), which reversed and remanded for a new
trial after a district court failed to obtain assurances that a juror’s expressed bias was

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“shakable.” Id. at 626-27. However, the author of the panel opinion, the Honorable
Posner, acknowledged the following year that the Supreme Court has never held that a
judge must dismiss a juror who has provided “potentially equivocal assurances of
impartiality during voir dire,” especially without objection.

Cage, 305 F.3d at 626.

Regardless, the R&R correctly noted that the Supreme Court has not established that a
trial court must, on its own, obtain sworn declarations of impartiality from jurors who have
given arguably ambiguous assurances of impartiality during voir dire.
Moreover, the state supreme court reasonably concluded that Lepsch had also failed
to show that J.A. and D.M. were biased.

As the R&R explained, the touchstone of

impartiality is whether “the juror can lay aside his [or her] impression or opinion and
render a verdict based on the evidence presented in court.” Irvin v. Dowd, 366 U.S. 717,
723 (1961); see also Lepsch, 2017 WI 27, ¶¶ 21, 36. Here, while J.A. and D.M. initially
acknowledged on their questionnaires that they would give police officers’ testimony more
credibility, each also wrote that there was no reason they could not be impartial. As D.M.
added, “I believe in facts, not people,” which suggests a willingness to decide the case on
the evidence. Similarly, J.A. explicitly stated that “he would have to set his opinions aside
and decide the case on the evidence presented at trial.” As further noted, both J.A. and
D.M. were present when Attorney Rust discussed the importance of not being biased in
favor of the police and the state similarly stressed that it wanted jurors who could be
objective and fair. All of these undisputed facts support the deference recommended in
the R&R to the state courts’ determination that J.A. and D.M. could set aside their
impressions of police officer credibility and render a verdict based on the evidence. It also

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bears emphasis that the state trial court held a Machner hearing before concluding, based
partly on Attorney Rust’s testimony, that “each juror was able to put any potential biases
out of their minds” and “decided the case based solely on the evidence before them.”
Lepsch, 2017 WI 27, ¶ 26; see also Yount, 467 U.S. at 1039 (“[the trial] judge … is best
situated to determine competency to serve impartially”). Finally, contrary to Lepsch’s
citations already discussed, the state supreme court’s rejection of Lepsch’s claim that J.A.
and D.M. were biased did not contradict or unreasonably apply clearly established federal
law.

B.

Ineffective Counsel

As for Lepsch’s claim that Attorney Rust ineffectively failed to insist on an
unequivocal assurance of impartiality from J.A. and D.M., Lepsch did not object to the
R&R’s failure to explicitly discuss prejudice, nor to the state supreme court’s holding that
Lepsch failed to show prejudice. (See dkt. #38 at 17-20.) Regardless, because the state
supreme court reasonably determined that no biased jurors sat on the jury as a matter of
fact, Lepsch cannot now show prejudice in his collateral attack on his related
ineffectiveness claim. See Warren v. Baenen, 712 F.3d 1090, 1105-06 (7th Cir. 2013).
Finally, for the reasons stated in the R&R, Lepsch’s ineffectiveness claim would fail even
under de novo review, principally because Attorney Rust’s strategy in not seeking an
unequivocal assurance of impartiality from J.A. or D.M. was reasonable. (Dkt. #38 at 67, 20); Strickland, 466 U.S. at 689 (“[A] court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance; . . .

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[and] the defendant must overcome the presumption that, under the circumstances, the
challenged action “might be considered sound trial strategy.”).

II. A certificate of appealability will not issue
Because Lepsch seeks relief under § 2254, he may appeal this order only if he obtains
a certificate of appealability. The court may issue a certificate of appealability only if
Lepsch makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). To obtain a certificate of appealability, Lepsch “must demonstrate that
reasonable jurists would find the [ ] court’s assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). For the reasons stated
above, the court must deny a certificate of appealability.

ORDER
IT IS ORDERED that:
1) The magistrate judge’s report and recommendation (dkt. #38) is ADOPTED,
as modified.
2) Petitioner’s objections (dkt. #40) are OVERRULED.
3) Petitioner’s petition (dkt. #1) is DENIED, and a certificate of appealability is
DENIED.
4) The clerk of court is directed to enter judgment.
Entered this 26th day of September, 2023.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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