The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JAMES BROWN,
Petitioner,
v. Case No. 15-C-635
MARC CLEMENTS,
Respondent.
DECISION AND ORDER
Petitioner James Brown filed this habeas corpus action on May 27, 2015. Judge Pepper
screened the petition and concluded that there were potentially four viable, exhausted claims
in the petition. (ECF No. 6.) More recently, the parties consented to the jurisdiction of the
undersigned magistrate judge. For the reasons given below, the petition will be denied.
BACKGROUND
In Milwaukee County Circuit Court, the petitioner pled guilty to two counts of second-
degree sexual assault with use of force. The first criminal complaint, filed in December 2011,
alleged that the petitioner was one of two men who parked a van and then pulled a woman
known as O.K. inside the van. After they drove away, the petitioner took money from O.K.
and then raped her while choking her. He then dumped her out of the car and left. The first
complaint alleged kidnapping, robbery with use of force, and second-degree sexual assault.1
1 The facts are taken from the decision of the Wisconsin Court of Appeals, ECF No. 13-8.
The following year, the State of Wisconsin filed another complaint, this time alleging
that in 2010 (two years earlier) the petitioner came up behind a woman known as V.R.M. and
hit her on the head, knocking her to the ground. (The State explained that DNA had
connected the petitioner to the 2010 victim.) He then dragged her to a car and threw her
inside, strangling her in the process. When she said she had no money, the petitioner then
choked her harder and raped her. The second complaint alleged kidnapping, attempted
robbery, false imprisonment, strangulation and suffocation, and second-degree sexual assault.
Both victims testified at two separate preliminary hearings. Victim O.K. testified on
January 4, 2012. The following month, the petitioner’s mother received a letter purportedly
from O.K. ECF No. 15 at 12. The letter was signed by O.K. and notarized. ECF No. 13-8 at
14. The letter stated that O.K. had “made up the story about Mr. Brown,” that he “did not
harm” her, and that she did not want to “let an innocent man sit in jail over a lie I made up.”
Id. The existence of the letter arose at an April 3, 2012 revocation hearing in connection with
a prior sentence. The administrative law judge, in a written decision, found the letter’s
provenance questionable in view of the police interview of O.K. immediately after the assault,
as well as the fact that no one had testified to the authenticity of the hearsay contained in the
letter. Id. at 14. The letter apparently did not surface again; in fact, at a May 31, 2012
conference, the State confirmed that O.K. had been located (in Las Vegas) and would be
flying back to testify against the petitioner.
Eventually the State moved to join the two cases for trial given that the two crimes
were “of the same or similar character.” Wis. Stat. § 971.12(1). The trial court joined the
cases, finding that the petitioner would not be prejudiced by the joinder since even if the trials
occurred separately, each crime would be admissible in both cases as other-acts evidence. The
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petitioner pled guilty to one count of second-degree sexual assault in each case. As part of the
plea deal, the State agreed that it would recommend prison time but leave the length of the
sentence entirely to the court. The trial court sentenced the petitioner to two consecutive
seven-year terms of incarceration.
On appeal, appellate counsel filed a no-merit report raising several potential issues,
none of which the court of appeals believed were meritorious. In this habeas petition, the
petitioner brought claims alleging ineffective assistance of trial and appellate counsel,
violation of due process due to an involuntary plea, and violation of the plea agreement by
the State.
ANALYSIS
This habeas petition is subject to the provisions of the Antiterrorism and Effective
Death Penalty Act, known as AEDPA. “The Antiterrorism and Effective Death Penalty Act
of 1996 modified a federal habeas court’s role in reviewing state prisoner applications in order
to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given effect
to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002).
Habeas is not simply another round of appellate review. 28 U.S.C. § 2254(d) restricts
habeas relief to cases in which the state court determination “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 “a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.”
A decision is “contrary to” Supreme Court precedent if the state court “contradicts the
governing law set forth in [Supreme Court] cases.” Coleman v. Hardy, 690 F.3d 811, 814 (7th
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Cir. 2012). A state-court decision is an “unreasonable application of” clearly established law
“if the state court identifies the correct governing legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. As for
the determination of the facts, federal courts will not “characterize these state-court factual
determinations as unreasonable ‘merely because [we] would have reached a different
conclusion in the first instance.’ Instead, § 2254(d)(2) requires that we accord the state trial
court substantial deference. If “‘[r]easonable minds reviewing the record might disagree’
about the finding in question, ‘on habeas review that does not suffice to supersede the trial
court's ... determination.’” Brumfield v. Cain, 576 U.S. 305, 135 S. Ct. 2269, 2277 (2015)
(quoting Wood v. Allen, 558 U.S. 290, 301 (2010) (other citations omitted)).
The scope of federal review of state court decisions on habeas is “strictly limited” by
28 U.S.C. § 2254(d)(1). Jackson v. Frank, 348 F.3d 658, 661 (7th Cir. 2003). The unreasonable
application standard is “a difficult standard to meet.” Id. at 662. Even an incorrect or
erroneous application of the federal precedent will not justify habeas relief; rather, the state
court application must be “something like lying well outside the boundaries of permissible
differences of opinion.” Id. at 662 (internal citation omitted).
1. Ineffective Assistance
The petitioner asserts that trial counsel was ineffective for failing to conduct a proper
investigation, object at sentencing when the State violated the plea agreement, and object to
joinder of the two criminal cases. ECF No. 15 at 7. The standard for evaluating counsel’s
performance is Strickland v. Washington, 466 U.S. 668 (1984). In evaluating such claims, I must
take “a highly deferential look at counsel’s performance,” in which “counsel is strongly
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presumed to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.”
A. Joinder
The State first argues that the petitioner, by pleading guilty, has waived claims based
on his counsel’s handling of the witness recantation letter and his handling of the joinder
issue. With respect to joinder, the court of appeals found that by pleading guilty, the petitioner
forfeited his right to appeal the trial court’s granting of the motion for joinder. ECF No. 13-8
at 7. It further concluded that there was no merit to any challenge to the joinder.
The State cites Tollett v. Henderson, 411 U.S. 258, 267 (1973), in which the Supreme
Court found that a guilty plea represents “a break in the chain of events” preceding it in the
criminal process. “When a criminal defendant has solemnly admitted in open court that he is
in fact guilty of the offense with which he is charged, he may not thereafter raise independent
claims relating to the deprivation of constitutional rights that occurred prior to the entry of
the guilty plea.” Id. Because any ineffectiveness of counsel regarding the issue of joinder had
occurred prior to the plea, and because the joinder issue does not implicate the voluntariness
of his plea, the State is correct that the petitioner is barred from raising such a challenge.
Tollett, 411 U.S. at 267.
It is clear, moreover, that the claim would not succeed even if the plea did not preclude
consideration of the argument. As the court of appeals concluded, there was no merit to the
claim that the trial court had improperly joined the cases. It would therefore be impossible to
conclude that counsel’s performance was deficient at all, much less that it fell below the
Strickland standard. Finally, I note that it appears counsel did oppose the joinder. See ECF No.
13-8 at 4. Although counsel did not seek an interlocutory appeal, as the petitioner believes he
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should have, such a tactic is hardly required in order to live up to adequate standards of
performance.
B. Recantation Letter
The petitioner also argues his counsel was ineffective for failing to fully investigate the
authenticity of the recantation letter from witness O.K. Counsel did hire an investigator to
look into the letter’s authenticity. Counsel explained in an affidavit that the investigator
interviewed O.K., and O.K. denied writing the letter. ECF No. 13-7. Nevertheless, the
petitioner asserts that counsel never obtained a handwriting analysis, the investigator never
talked to the notary who notarized the signature, and the investigator spoke with O.K. over
the phone, rather than in person. ECF No. 15 at 11-12.
The State argues that this claim is also waived by virtue of the plea agreement. As with
the joinder issue, any issues about counsel’s performance regarding the recantation letter had
occurred well before the petitioner’s guilty plea in September 2012. As the court of appeals
found, the letter had been discussed in a revocation hearing in April of that year, and the
petitioner had also admitted that his lawyer gave him a copy of the investigation report
regarding the letter. “[A]t the time Brown pled guilty, he either knew the results of the
investigation of the letter’s authenticity¾as his trial counsel claims¾or he believed that there
was a recantation letter that could potentially defeat the charge against him. Either way, he
still chose to plead guilty.” ECF No. 13-8 at 17. The court further recognized that a guilty
plea is not merely a generic statement of guilt, but a particularized admission to the facts
alleged in the criminal complaint. By pleading guilty and admitting to those facts, the
petitioner explicitly rejected any suggestion that O.K.’s recantation letter was authentic; at a
minimum, the court found, he “forfeited the right to continue to litigate the authenticity of
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the letter, the victim’s credibility, and the facts concerning the assault.” Id. at 18. Additionally,
given counsel’s belief that the letter was not authentic, there would have been no reason for
counsel to conduct further inquiry or press the issue with the trial court.
Because the petitioner’s challenge does not relate to the plea itself, it is clear that the
guilty plea precludes any challenge to counsel’s performance regarding the letter. Tollett, 411
U.S. at 267. As explained earlier, the Supreme Court has found that a guilty plea is a “break
in the chain” that precludes further litigation: “the focus of federal habeas inquiry is the nature
of the advice and the voluntariness of the plea, not the existence as such of an antecedent
constitutional infirmity.” Id. at 267, 266. Wholly apart from the guilty plea, the claim lacks
any merit. The petitioner’s counsel did conduct an investigation of the letter. Counsel
explained that he hired an investigator, who interviewed O.K., and O.K. denied writing the
letter. ECF No. 13-7. O.K. also expressed a willingness to return to Wisconsin from Nevada
and testify against the petitioner, something she likely would not do had she recanted.
Counsel also stated that he had been informed by the district attorney’s office that O.K. had
not written the letter. Given the serious doubts about the letter’s authenticity, counsel was not
obligated to conduct any further investigations.
C. Violation of the Plea Agreement
The petitioner also asserts that counsel’s performance was substandard because he
failed to object at the sentencing hearing when the State violated the plea agreement. Part of
the agreement, the prosecutor explained, was that “the State is going to recommend prison,
and I’m leaving the amount [of time] and all the particulars up to the discretion of the Court.”
ECF No. 13-13 at 3. The petitioner now argues that the State pulled the rug out from him
when, at the sentencing hearing, the prosecutor stated that the petitioner was involved in
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repeated violent behaviors, had an extensive and serious record, was becoming more
dangerous, and had mental health problems. ECF No. 13-14 at 5-17. The prosecutor also
noted there was a “level of depravity” and “cruelness” to the crimes, Id. at 15, and further
that the crimes were the sort of “scary stuff” that people associate with sexual
assaults¾“getting grabbed off the street, taken to some place . . and then being sexually
assaulted,” Id. at 9-10. The prosecutor also described how the victims’ lives had been turned
upside down and how one of the victims had blacked out during the sexual assault. Id. at 6.
The prosecutor believed the petitioner “needs a period of imprisonment that punishes him,
that addresses his rehabilitative needs . . . so I am asking the Court to place him in prison.”
Id. at 15-16.
The petitioner argues that the kind of language used by the prosecutor was a violation
of their plea agreement. As the court of appeals found, however, the plea agreement did not
require the State to “stand silent,” but merely to abstain from recommending a specific term
of imprisonment. ECF No. 13-8 at 12. The court found, therefore, that the State had not
violated the plea agreement and there was no basis for counsel to have argued the point. This
finding is clearly reasonable. Moreover, the trial judge undoubtedly was already aware of the
serious nature of the crime by virtue of the complaints and the plea agreement. It is therefore
unlikely that anything said by the prosecutor would have changed the sentence imposed. In
any event, because there were no grounds to object or take other action, the petitioner cannot
show that his counsel’s performance violated the standard set forth in Strickland. For the same
reasons, the petitioner cannot show that his independent claim that the State violated the plea
agreement has any merit.
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D. No-merit Report
The petitioner also challenges appellate counsel’s decision to file a no-merit report,
although his argument on this point is at best cursory. In this case, the court of appeals gave
careful consideration to each of the potential appellate issues and heard from the petitioner in
response. As recounted above, the court of appeals found no appellate issues of merit, and
neither can this court. Accordingly, it is impossible to conclude that counsel’s decision to file
a no-merit report could be substandard advocacy under the Strickland standard.
2. Guilty Pleas
The petitioner also argues that his two guilty pleas were not knowingly, intelligently,
and voluntarily entered. He asserts that he has ADHD and other learning disabilities, which
required placement in a special education program, and his ability to understand basic
conversation is below normal. ECF No. 15 at 17. Nevertheless, the trial court did not inquire
as to these matters. In the petitioner’s view, this means the court failed to ensure that his plea
was voluntarily and knowingly entered. The court of appeals rejected this argument, noting
that the trial court had conducted a “thorough” plea colloquy to confirm that the petitioner
understood the agreement as well as the charges and penalties he faced. ECF No. 13-8 at 8.
The signed guilty plea questionnaires that the trial court reviewed both
indicated that Brown had completed twelve years of schooling and had
achieved “a high school diploma, GED, or HSED.” Further, the
questionnaires indicated that Brown had not taken drugs or alcohol in the last
twenty-four hours, and the trial court explicitly confirmed that with Brown.
The trial court asked Brown numerous questions to confirm that he understood
the proceedings and also explicitly inquired whether he had “any questions
about what we are doing here today.” Brown’s answers all indicated he
understood. While the trial court did not comment on Brown’s education, it is
apparent that the trial court assessed Brown’s comprehension and determined
that he understood the proceedings.
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ECF No. 13-8 at 9. The court of appeals relied on State v. Bangert, 389 N.W.2d 12, 19 (Wis.
1986), for its analysis of the requirement that a plea must be knowing, voluntary, and made
intelligently. Bangert itself relied in part on Boykin v. Alabama, 395 U.S. 238 (1969) and Brady
v. United States, 397 U.S. 742, 748, n. 6 (1970). Thus, even though the court of appeals here
did not explicitly rely on federal Constitutional law in reaching its decision, it is clear that the
basis of its analysis was grounded in rulings from the United States Supreme Court.
Moreover, the § 2254(d) analysis asks whether the state court’s decision is contrary to clearly
established federal law, not whether the state court actually cited that law. See Early v. Packer,
537 U.S. 3, 8 (2002). The question, therefore, is whether the court’s ruling was an
unreasonable application of Boykin and Brady.
Boykin held that judges must make a record supporting the finding that the defendant’s
plea was intelligent and voluntary. 395 U.S. at 242. It did not, however, impose specific
inquiries or require “magic words” that judges must utter. Brady reaffirmed that “[w]aivers of
constitutional rights not only must be voluntary but must be knowing, intelligent acts done
with sufficient awareness of the relevant circumstances and likely consequences.” 397 U.S. at
748. Here, the court of appeals properly considered the nature of the plea colloquy, as well as
the fact that the petitioner had completed high school or obtained a GED. Further, it noted
that the trial court had “asked Brown numerous questions to confirm that he understood the
proceedings.” ECF No. 13-8 at 9. The fact that the trial court did not make a specific inquiry
into the petitioner’s learning disabilities does not mean the plea was involuntary; the question
isn’t whether the petitioner had average ability to understand things (many criminal
defendants suffer from mental infirmities)––it is whether, at that moment, with the advice of
counsel, he understood what he was doing and the consequences of his act. See Brady, 397
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U.S. at 748. Many individuals have learning disabilities or ADHD and are nevertheless able
to understand relevant circumstances and the consequences of their decision. All of the
petitioner’s responses to the trial judge’s many questions indicated that he fully understood
his decision to plead guilty. ECF No. 13-13. The trial judge explained what the State would
have to prove, explained what the maximum penalties were, and obtained the petitioner’s
agreement that he understood the rights he was giving up by pleading guilty. Id. at 4-7. The
petitioner further testified that he had read the criminal complaints and agreed that the facts
alleged therein were true. Id. at 8-9. In reaching its conclusion that there was no basis to
challenge the pleas, the court of appeals did not unreasonably apply any controlling Supreme
Court precedent, nor did it base its decision on an unreasonable determination of the facts, in
finding no merit to this issue. See 28 U.S.C. § 2254(d).
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, this Court must “issue
or deny a certificate of appealability when it enters a final order adverse to the applicant.” A
certificate should be issued only where the petitioner “has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
For a certificate of appealability to issue, a petitioner must show that “reasonable
jurists” would find this Court’s “assessment of the constitutional claims debatable or wrong.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000); Buck v. Davis, 137 S. Ct. 759, 773 (2017). Here, I
cannot conclude that the assessment of the merits of the petitioner’s claims is debatable by
reasonable jurists. Accordingly, a certificate of appealability will be denied.
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CONCLUSION
For the reasons given above, the petition is DENIED and the case is DISMISSED. A
certificate of appealability is DENIED. The clerk will enter judgment accordingly.
SO ORDERED this 8th of May, 2020.
STEPHEN C. DRIES
United States Magistrate Judge
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