Opinion

Brown v. Kemper

Court
District Court, E.D. Wisconsin
Filed
Oct 9, 2019
Cited by
0 cases
Authority
More cited than 32.5%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

CALVIN LEE BROWN,

Petitioner,

v. Case No. 19-CV-1090

PAUL KEMPER,

Respondent.

DECISION AND ORDER DISMISSING PETITION

Calvin Lee Brown, who is incarcerated pursuant to the judgment of a Wisconsin

Circuit Court, filed a petition for a writ of habeas corpus. The court screened Brown’s

petition in accordance with Rule 4 of the Rules Governing Section 2254 Cases and ordered

him to show cause why his petition should not be dismissed. The court noted that he was

arguing that (1) the state court erred in denying his request for a hearing under Franks v.

Delaware, 438 U.S. 154 (1978); (2) the court of appeals erred by failing to consider the

distinction between “citizen informers as opposed to traditional police informers”; (3) he

made a substantial preliminary showing to warrant a Franks hearing; and (4) the search

warrant affidavit was insufficient. In a “Subsequent Supplemental Brief for Habeas

Corpus Petition,” Brown has attempted to show cause why his petition should not be

dismissed. (ECF No. 10.)

Brown’s claims all amount to a challenge that the search warrant violated the

Fourth Amendment. Evidence obtained in violation of the Fourth Amendment is subject

to the exclusionary rule. “The exclusionary rule protects ‘the right to be free from

arbitrary intrusion by the police’ by excluding ‘[e]vidence obtained by police officers in

violation of the Fourth Amendment … in the hope that the frequency of future violations

will decrease.” Haakenstad v. Symdon, No. 16-cv-702-jdp, 2017 U.S. Dist. LEXIS 212933, at

*11 (W.D. Wis. Dec. 29, 2017) (quoting Stone v. Powell, 428 U.S. 465, 483 (1976)). But the

exclusionary rule generally is not a basis for granting habeas relief because the costs of

applying it outweigh the benefits. Haakenstad, 2017 U.S. Dist. LEXIS 212933, at *11-12

(quoting Stone, 428 U.S. at 490, 493-94). “[T]he primary aim of the exclusionary rule is to

deter the police from violating the Fourth Amendment rather than to remedy an injury

to the individual.” Monroe v. Davis, 712 F.3d 1106, 1113 (7th Cir. 2013). The prospect of

evidence eventually being excluded on collateral review is too remote to deter police

misconduct. Id. at 1113-14.

A habeas petitioner may obtain federal habeas review of a Fourth Amendment

claim only if he can show “(1) that the state court denied him a full and fair hearing on

his claim, and (2) that the claim was meritorious.” Monroe, 712 F.3d at 1113. “A petitioner

has had the benefit of such an opportunity so long as (1) he clearly apprised the state

court of his Fourth Amendment claim along with the factual basis for that claim, (2) the

state court carefully and thoroughly analyzed the facts, and (3) the court applied the

proper constitutional case law to those facts.” Miranda v. Leibach, 394 F.3d 984, 997 (7th

Cir. 2005) (citing Pierson v. O'Leary, 959 F.2d 1385, 1391 (7th Cir. 1992); Cabrera v. Hinsley,

324 F.3d 527, 531-32 (7th Cir. 2003); Hampton v. Wyant, 296 F.3d 560, 563-64 (7th Cir. 2002)).

“The examples of situations that would fail to satisfy these requirements are extreme: the

judge taking bribery, sleepwalking, saying something as egregious as ‘probable cause is

not required in Illinois.’” Haakenstad, 2017 U.S. Dist. LEXIS 212933, at *12 (quoting Cabrera,

324 F.3d at 531). “Only if the court’s error ‘betray[s] an unwillingness on the part of the

[state] judiciary to treat [the petitioner’s] claim honestly and fairly’ will a

federal habeas court reach the merits of the Fourth Amendment challenge.” Haakenstad,

2017 U.S. Dist. LEXIS 212933, at *12 (quoting Monroe, 712 F.3d at 1114.)

In response to the court’s order to show cause, Brown argues that the court of

appeals did not really consider his arguments. He notes that it initially mistakenly relied

on a pro se brief. When the error was pointed out, the court of appeals reissued basically

the same decision, although omitting any reference to the pro se brief. (ECF No. 10 at 6.)

It is not enough for a petitioner to show that a state court’s decision was wrong.

“Even an ‘egregious error’ … is not enough to support a writ of habeas corpus (that's

what it means to say that the exclusionary rule does not apply on collateral attack); a

blunder, no matter how obvious, matters only in conjunction with other circumstances

that imply refusal by the state judiciary to take seriously its obligation to adjudicate

claims under the fourth amendment.” Hampton, 296 F.3d at 564.

The court cannot say that the court of appeals’ review “was in some way a sham.”

See Cabrera, 324 F.3d at 531. The court noted that Brown’s arguments included the

allegation that the affiant omitted the fact that the informant had an active bench warrant

for her violation of a deferred prosecution agreement in a drug case. (ECF No. 1-1 at 16-

17, ¶¶7, 9.) The court of appeals’ recitation of Brown’s claim demonstrates that it was

clearly apprised of the legal and factual basis for the claim. The state court carefully and

thoroughly analyzed those facts and applied the proper connotational law to those facts.

(See, e.g., ECF No. 1-1 at 19-20, ¶14.) This was all that was required. Miranda, 394 F.3d at

997.

Brown was able to present the merits of his Franks claim. The state courts found

that he failed to make the required “’substantial preliminary showing’ that the omitted

information … was critical to a probable cause determination.” (ECF No. 1-1 at 19, ¶14

(citing Franks, 438 U.S. at 155-56).) Simply because Brown was denied a Franks hearing

does not mean he was denied a “full and fair hearing on his claim.” Montenegro v. Bryant,

245 F. Supp. 2d 926, 933-34 (C.D. Ill. 2003). This court is barred under Stone from

considering whether the state courts properly applied the exclusionary rule, and his

petition must be dismissed.

Finally, the court concludes that Brown has failed to make a substantial showing

of a denial of constitutional right. See 28 U.S.C. § 2253(c)(2); Rule 11 of the Rules

Governing Section 2254 Cases. Therefore, the court will deny him a certificate of

appealability.

IT IS THEREFORE ORDERED that Brown’s petition and this action are

dismissed. The court denies Brown a certificate of appealability. The Clerk shall enter

judgment accordingly.

Dated at Milwaukee, Wisconsin this 9th day of October, 2019.

O&A:

WILLIAM E. DUFF

US. Magistrate Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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