# Brown v. Eplett

> District Court, E.D. Wisconsin · March 14, 2024

URL: https://www.frixlaw.com/law-library/cases/10719650

## Case

- **Court:** District Court, E.D. Wisconsin
- **Decided:** March 14, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## How later opinions describe it (automated extraction)

- stating that arguments that a party fails to develop in its opening brief in any meaningful manner will be deemed waived or abandoned

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

AKIM A. BROWN,

Petitioner,
v. Case No. 20-cv-0995-bhl

CHERYL EPLETT, Warden,

Respondent.
______________________________________________________________________________

ORDER DENYING § 2254 HABEAS PETITION
______________________________________________________________________________

In 2014, a Milwaukee County jury found Petitioner Akim A. Brown guilty of one count of
second-degree sexual assault. Brown was sentenced to twelve years of initial confinement
followed by eight years of extended supervision. In postconviction proceedings and on direct
appeal, Brown contended he received ineffective assistance of counsel. After Brown’s conviction
was affirmed, he filed a petition for writ of habeas corpus in this Court, invoking 28 U.S.C. § 2254.
Because Brown has not established that he is entitled to habeas relief, his petition will be denied.
FACTUAL AND PROCEDURAL BACKGROUND1
Brown’s conviction stems from a November 2013 encounter with “L.S.” State v. Brown,
No. 2017AP1332-CR, 2018 WL 5821784 (Wis. Ct. App. Nov. 6, 2018). Brown met L.S. on
Saturday, November 23, 2013, at a mutual friend’s weekend gathering in Green Bay, Wisconsin.
On Sunday evening, Brown gave L.S. a ride back to her home in Milwaukee, arriving around
midnight. Id. at *1.
According to L.S., after getting to her apartment, Brown asked to use her bathroom. Id.
He then refused to leave, grabbed her by her shirt collar, pulled her onto her bed, and sexually
assaulted her. Id. L.S. repeatedly told him “no” but he held her down and did not relent. Id. After

1 In deciding a habeas petition, the Court must presume the facts set forth by the state courts are correct. 28 U.S.C.
§ 2254(e)(1). The petitioner has the burden of rebutting that presumption by “clear and convincing evidence.” Id.
The background facts are based on the Wisconsin Court of Appeals decision affirming Brown’s conviction. See State
v. Brown, No. 2017AP1332-CR, 2018 WL 5821784 (Wis. Ct. App. Nov. 6, 2018). Where the Court of Appeals’
factual discussion is incomplete, the Court has augmented it by citing directly to the trial transcript.
the assault, L.S. immediately got up and showered, after which Brown also took a shower. Id.
L.S. then pretended to be asleep, and Brown left her apartment and drove home to Kenosha. Id.
The next day (Monday), L.S. reported the incident to Elizabeth Simmons, a friend in Green
Bay with whom she had been staying when she met Brown. Id. at *1–2. L.S. then went to her
work, where she also reported the assault to her supervisor. Id. at *1. On her way home from
work, she stopped at an urgent care center but did not stay for treatment because she was
embarrassed and scared. Id. Two days later, on Wednesday, November 27, 2013, L.S. reported
the incident to Milwaukee police. Id.
Brown was arrested and offered a very different account. Id. During a custodial interview,
he asserted that the encounter with L.S. was entirely consensual. Id. In describing the incident to
police, Brown claimed, among other things, that L.S. had stimulated herself while they were
having sex. Id.
Brown’s case went to trial four months later. Id. At trial, L.S. testified consistent with her
prior statement to the police. She told the jury that when she and Brown arrived at her home,
Brown asked for permission to use her bathroom and she agreed. (ECF No. 10-2 at 78–79.) L.S.
further testified that Brown then went into her bedroom, removed his clothes, and forced L.S. to
have sexual intercourse without her consent. (Id. at 81–89; ECF No. 10-3 at 18–20.) L.S. testified
that she tried to keep her pants up and told Brown, “no, no, you shouldn’t be doing this, I don’t
know you, I barely know you.” (ECF No. 10-2 at 85.) L.S. testified she tried to keep her legs
closed to prevent Brown from having intercourse, but he overpowered her and forced her legs
apart. (ECF No. 10-3 at 16.) She admitted she did not scream during the assault, explaining that
she did not know if anyone would have heard her because she lived in an apartment building and
did not know if her neighbors were home. Brown, 2018 WL 5821784, at *1. She also admitted
she had not left the apartment or called the police when Brown took a shower after the assault. Id.
The police officer who interviewed L.S. months earlier also testified. Id. at *2. The officer
summarized L.S.’s statements to the police when she reported the incident. Id. The officer
described L.S. as being “very emotional” during the interview, indicating that “she cried quite a
bit.” Id. The trial also included testimony from L.S.’s friend, Simmons, who described how L.S.
had called her on Monday morning and told her that she had been “taken advantage of” and that
she was in pain after the incident. Id. Simmons also testified that L.S. cried as she related what
happened and that L.S.’s demeanor was sad and scared during their call. Id. The testimony of the
officer and Simmons regarding what L.S. had reported to them was consistent with L.S.’s trial
testimony. Id.
Brown testified in his defense. Id. The defense’s theory was that L.S. had falsely accused
Brown of sexual assault after having regrets over consenting to have intercourse with him. Id.
Brown testified that he and L.S. had been “playful[ly] flirt[ing] during conversations over the
weekend in Green Bay. Id. (alterations in original). Brown stated that L.S. informed him during
the drive to her residence that she had “checked [him] out” on the internet and looked at his
Facebook page. Id. (alteration in original). Brown also testified that during the ride to her
apartment, he and L.S. had discussed Brown spending the night at her home and he denied having
asked to use her bathroom. Id. Brown also provided a detailed description of the sexual encounter.
Id. He testified that L.S. changed her clothes, put lotion on her body, and joined him in bed where
he was watching a movie. Id. Brown testified that they kissed on the bed and as sexual intercourse
commenced, L.S. had her hands on the sides of his body and her legs were wrapped around his
hips. Id. Brown testified that he kissed her neck and her ear and was “wooing, physically wooing
[L.S.] into sex.” (ECF No. 10-3 at 95–96.) Brown testified that L.S. did not resist by trying to
keep her legs from opening and he and L.S. were in a “missionary sex position.” (Id. at 97.) Brown
testified that he and L.S. were “conversating” after having sexual intercourse and, using coarse
language, Brown told the jury that L.S. commented on how the intercourse made her sore. (Id. at
98.) Brown reiterated the coarse language, saying “[t]hat’s what she actually said to me.” (Id.)
Brown testified that he did not force himself on L.S. or hold her down. Brown, 2018 WL 5821784,
at *2. He also testified that L.S. never told him “no” or to stop, nor did she resist or struggle while
they had sex. Id.
During its deliberations, the jury asked to review the testimony of Brown and L.S.
specifically relating to the sex act. Id. With the agreement of both parties, the trial court had the
court reporter read back to the jury both Brown’s and L.S.’s direct testimony describing the
incident from the time that they entered L.S.’s apartment to the time that Brown took a shower.
Id. The jury found Brown guilty of one count of second-degree sexual assault. Id. The circuit
court sentenced Brown to twelve years of initial confinement followed by eight years of extended
supervision. Id. The judgment of conviction was entered on May 28, 2014. (ECF No. 9-1.)
Brown’s postconviction attorney filed a motion claiming that Brown’s trial counsel had
provided Brown with ineffective assistance and requested a new trial. See Brown, 2018 WL
5821784, at *2. Postconviction counsel argued that trial counsel improperly failed to elicit
testimony from Brown that L.S. had stimulated herself during the sex act, conduct he believed
would have helped establish that the encounter was consensual. Id. Counsel also argued that trial
counsel improperly failed to object to the testimony from L.S.’s friend Simmons and from the
police officer who both repeated L.S.’s prior statements about the details and non-consensual
nature of the encounter. Id. Postconviction counsel contended that trial counsel should have
objected to both witnesses’ testimony as inadmissible hearsay that improperly bolstered L.S.’s
credibility. Id.
The state circuit court held extensive evidentiary hearings (called Machner hearings under
Wisconsin law2) concerning Brown’s ineffective assistance allegations. These hearings were
presided over by a new judge, who took testimony over multiple days in April, August and
September of 2014. See id. at *3. During these hearings, Brown’s trial counsel expressed his
difficulties in preparing for trial with Brown, testifying that during trial strategy discussions,
Brown tried to “control the conversation,” would not stay focused, and his account provided new
details of the incident “every time [Brown] opened his mouth.” Id. Trial counsel admitted that he
did not have a strategic reason for failing to object to the testimony containing prior consistent
statements. Id.
The postconviction court denied Brown’s request for relief. It noted that the relationship
between Brown and his trial counsel “was not the best” due to disagreements over trial strategy
but determined that counsel’s performance did not fall below the level of reasonable representation
to the extent that Brown was prejudiced. Id. The court explained that “even though there were
many things about [trial counsel’s] performance that he even recognize[d] could have been done
differently . . . [t]he Sixth Amendment guarantees reasonable competence, not perfect advocacy
judged with the benefit of hindsight.” Id. (alterations in original). In a June 2, 2017 oral ruling,
the court denied Brown’s ineffective assistance challenge. (ECF No. 9-14.) A written order
followed on June 15, 2017. (ECF No. 9-2.)
Brown then unsuccessfully appealed that denial to the Wisconsin Court of Appeals. The
court of appeals cited the two-part test applicable to claims of ineffective assistance laid out in

2 A Machner hearing is an “evidentiary hearing to evaluate counsel’s effectiveness, which includes counsel’s
testimony to explain his or her handling of the case.” State v. Balliette, 805 N.W.2d 334, 341 (Wis. 2011) (citing State
v. Machner, 285 N.W.2d 905 (Wis. Ct. App. 1979)).
Strickland v. Washington, explaining that Brown was required to “show that his trial counsel’s
performance was deficient and that the deficiency prejudiced the defense.” Brown, 2018 WL
5821784, at *3 (citing Strickland, 466 U.S. 668, 687 (1984)). In applying this standard, the
appellate court confirmed that the “central issue in this case is whether the sexual intercourse
between Brown and L.S. was consensual.” Id. The court also noted that witness credibility was
key given that Brown and L.S. were the only two people present during the incident. Id. After
analyzing the evidence, the appellate court concluded that the record showed the jury had accepted
L.S.’s testimony over Brown’s version of events and, therefore, even if Brown’s attorney rendered
ineffective assistance of counsel, Brown’s claim failed because he had not shown that the verdict
would have been different if the alleged errors had not been made. Id. at *4–5. In sum, Brown
had “failed to prove the prejudice prong the Strickland analysis, and thus his ineffective assistance
claim” failed. Id. at *5.
Brown filed a motion for reconsideration, which the court of appeals denied. (ECF No. 9-
7.) Brown then filed a petition for review in the Wisconsin Supreme Court, which was denied.
(ECF Nos. 9-8, 9-10.) Brown did not file a petition for writ of certiorari with the United States
Supreme Court. On July 1, 2020, Brown filed a petition for writ of habeas corpus with this Court.
(ECF No. 1.)
LEGAL STANDARD
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) limits a federal
court’s ability to grant habeas corpus relief. With respect to a claim adjudicated on the merits in
state court, a habeas petition can be granted only if the state court’s decision (1) “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) “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); Cullen
v. Pinholster, 563 U.S. 170, 180–81 (2011). This standard is “highly deferential” and “demands
that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773
(2010) (citations omitted). It is intentionally very difficult to meet. See Metrish v. Lancaster, 569
U.S. 351, 357–58 (2013).
A state court decision is “contrary to . . . clearly established Federal law” within the
meaning of § 2254(d)(1) if the state court “applie[d] a rule different from the governing law set
forth” by Supreme Court precedent or when the state court “decides a case differently than [the
Supreme Court has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S.
685, 693–94 (2002). A state court decision involves an “unreasonable” application of established
precedent within the meaning of § 2254(d)(2) when the “state court identifies the correct governing
legal principle . . . but unreasonably applies it to the facts of the prisoner’s case.” Lockyer v.
Andrade, 538 U.S. 63, 75 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). Under
either prong, it is not enough that “a federal court believes the state court's determination was
incorrect” or erroneous. Schriro v. Landrigan, 550 U.S. 465, 473 (2007). Rather, the state court’s
application of clearly established law must be “objectively unreasonable, not merely wrong; even
clear error will not suffice.” Woods v. Donald, 575 U.S. 312, 316 (2015). The Supreme Court has
repeatedly explained that “a federal habeas court may overturn a state court’s application of federal
law only if it is so erroneous that ‘there is no possibility that fairminded jurists could disagree that
the state court’s decision conflicts with [the Supreme] Court’s precedents.’” Nevada v. Jackson,
569 U.S. 505, 508–09 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).
ANALYSIS
On habeas, Brown maintains his trial counsel provided him with ineffective assistance in
two ways.3 First, Brown contends that trial counsel improperly failed to elicit testimony from
Brown that L.S. stimulated herself during the sexual intercourse and concerning the act of
intercourse itself. Second, Brown argues his trial counsel was ineffective in failing to object to the
police officer’s testimony recounting L.S.’s statements during her police interview. Under
AEDPA, Brown is required to show that no fair-minded jurist would conclude that the Wisconsin
Court of Appeals’ decision was consistent with the applicable United States Supreme Court
precent. See Harrington, 562 U.S. at 102. Because Brown has failed to make this showing on
either ground, his petition will be denied.
I. The Wisconsin Court of Appeals Did Not Unreasonably Apply Strickland in
Concluding Brown Was Not Prejudiced by Counsel’s Failure to Elicit Testimony.
The controlling Supreme Court precedent for an ineffective assistance of claim is
Strickland v. Washington, 466 U.S. 668 (1984). To establish a violation of Strickland, a petitioner

3 Brown appeared to raise a third claim in his petition—that the interests of justice warrant a new trial. (ECF No. 1 at
10–11.) In its answer, Respondent denied this was a proper claim because Brown did not raise it in the Wisconsin
courts and therefore Brown procedurally defaulted on it. (ECF No. 9 at 4–5.) Brown did not pursue this claim in his
opening brief. (See ECF No. 21.) The Court thus considers the argument abandoned and will not address it. See,
e.g., Duncan v. State of Wis. Dep’t of Health and Fam. Servs., 166 F.3d 930, 934 (7th Cir. 1999) (stating that arguments
that a party fails to develop in its opening brief in any meaningful manner will be deemed waived or abandoned).
must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” 466 U.S. at 694. Thus, the Strickland test requires the
petitioner to establish both (1) deficient performance by counsel and (2) prejudice. Regarding the
deficient-performance prong, great deference is given to counsel’s performance, and the petitioner
has a heavy burden to overcome the strong presumption of effective performance. Id. at 690;
Coleman v. United States, 318 F.3d 754, 758 (7th Cir. 2003). This burden requires Brown to
“establish specific acts or omissions of his counsel which constitute ineffective assistance,” to
which this Court then “determine[s] whether these acts or omissions were made outside the wide
range of professionally competent assistance.” Coleman, 318 F.3d at 758 (citing Menzer v. United
States, 200 F.3d 1000, 1003 (7th Cir. 2000)). To show prejudice, Brown must demonstrate “that
there is 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. “The likelihood of a different
result must be substantial, not just conceivable.” Harrington, 562 U.S. at 112 (citing Strickland,
466 U.S. at 693). A court need not address both components; if the defendant makes an insufficient
showing on one, the inquiry ends. Strickland, 466 U.S. at 697.
In this case, the Wisconsin Court of Appeals applied Wisconsin law incorporating the
Strickland two-part test for evaluating claims of ineffective assistance of counsel. See Brown,
2018 WL 5821784, at *3. The appellate court correctly identified both parts of the test, noting that
it required Brown to “show that his trial counsel’s performance was deficient and that the
deficiency prejudiced” him. Id. (citing Strickland, 466 U.S. at 687). The appellate court also
correctly explained that Strickland’s prejudice prong required him to show that there was a
“reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. (quoting State v. Love, 700 N.W.2d 62, 70 (Wis. 2005). It also
explained that a reasonable probability was “a probability sufficient to undermine the confidence
in the outcome.” Id. (quoting Love, 700 N.W.2d at 70.) The appellate court then discussed
Brown’s arguments and the relevant evidence and concluded that even if trial counsel’s errors
constituted deficient performance, Brown had “not demonstrated that the verdict would have been
different.” Id. at *4.
Because the state court applied the appropriate rule from Strickland, this Court applies an
even higher standard of habeas deference. As the United States Supreme Court emphasized:
The pivotal question is whether the state court’s application of the
Strickland standard was unreasonable. This is different from asking
whether defense counsel’s performance fell below Strickland’s
standard. Were that the inquiry, the analysis would be no different
than if, for example, this Court were adjudicating a Strickland claim
on direct review of a criminal conviction in the United States district
court. Under AEDPA, though, it is a necessary premise that the two
questions are different. For purposes of § 2254(d)(1), “an
unreasonable application of federal law is different from an
incorrect application of federal law.” A state court must be granted
a deference and latitude that are not in operation when the case
involves review under the Strickland standard itself.

Harrington, 562 U.S. at 101 (citation omitted). The Supreme Court acknowledged that
“[s]urmounting Strickland’s high bar is never an easy task,” and “[e]stablishing that a state court’s
application of Strickland was unreasonable under § 2254(d) is all the more difficult.” Id. at 105
(“The standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and when the
two apply in tandem, review is ‘doubly’ so.”) (citations omitted); see also Woods, 575 U.S. at
31617 (“[F]or claims of ineffective assistance of counsel, [] AEDPA review must be doubly
deferential in order to afford both the state court and the defense attorney the benefit of the doubt.”)
(internal quotation marks omitted).
The Wisconsin Court of Appeals held that Brown failed to establish ineffective assistance
of counsel because he did not demonstrate that the verdict would have been different if the jury
had heard the testimony that Brown argued should have been elicited. Brown, 2018 WL 5821784
at *4. With respect to the testimony about L.S.’s self-stimulation, the court of appeals
acknowledged that the testimony was relevant to the issue of consent. Id. But it concluded that
Brown had not proven that counsel’s failure to introduce the evidence was prejudicial, noting that
the jury believed L.S. and not Brown based on other substantial evidence supporting each side’s
version of events. The court of appeals explained that “Brown’s testimony about the incident was
very detailed and included other information that suggested the intercourse was consensual, such
as the alleged flirting that had occurred during the weekend, making plans during the drive . . . to
spend the night at L.S.’s residence, and L.S.’s actions once they were at her residence.” Id.
Notwithstanding this evidence, the jury believed L.S. Id. The appellate court reasoned that even
if Brown’s attorney rendered ineffective assistance in not questioning Brown about the self-
stimulation, Brown’s claim still failed because he had not made the required showing that the
verdict would have been different if the jury had heard this testimony “in addition to the substantial
testimony given by Brown that suggested L.S. had consented to having sexual intercourse.” Id.
The appellate court also pointed out that the jury heard Brown’s testimony about L.S.’s consent
twice, once during his direct examination and again during jury deliberations when the court
reporter read it back. Id. This Court cannot conclude that no reasonable jurist would agree with
this analysis.
Challenging the court of appeals’ analysis, Brown contends the omitted self-stimulation
testimony was his “only proof and strongest evidence that the sexual intercourse was consensual.”
(ECF No. 21 at 39.) That is incorrect. Brown testified to many details that, if accepted by the
jury, would have suggested the encounter was consensual. That evidence, which the jury
apparently rejected, included his testimony about the alleged flirting that occurred in Green Bay,
his discussion with L.S. about spending the night at her apartment while driving to Milwaukee,
and L.S.’s alleged actions once they arrived at her residence, where he claims she changed her
clothes, applied lotion, and climbed into bed with him. See Brown, 2018 WL 5821784, at *2.
Other testimony that the jury did not credit included Brown’s report that he kissed L.S.’s neck and
ear and “physically wooed” her into sex. (ECF No. 10-3 at 95–96.) He also claimed that as sexual
intercourse commenced, L.S. placed her hands on his body and wrapped her legs around his torso.
Brown, 2018 WL 5821784, at *2. And he testified that L.S. did not resist by trying to keep her
legs from opening and he and L.S. were in a “missionary sex position.” (ECF 10-3 at 97.) Brown
further testified that L.S. never said “no” or “stop.” Brown, 2018 WL 5821784, at *2. Brown
testified that after L.S. showered, she emerged naked and while Brown was also naked and, on the
bed, they engaged in conversation about being naked and their respective comfort levels. (ECF
No. 10-3 at 98–99.) L.S. admitted that she did not scream, call for help or leave her apartment
when Brown went into the shower. Brown, 2018 WL 5821784, at *1. All of this evidence and
testimony was admitted and all of it supported Brown’s defense. As reasonably determined by the
appellate court, this detailed testimony, if accepted, more than adequately made Brown’s point that
L.S. not only consented to sexual intercourse but was a willing and active participant. Brown’s
suggestion that he was left with no evidence supporting his theory is simply wrong.
Moreover, the reasonableness of the state court’s analysis is supported by the reality that
Brown’s testimony concerning L.S. stimulating herself might have offended the jury. During the
Machner hearing, Brown’s trial counsel stated that during L.S.’s testimony he did not ask her
whether she had stimulated herself because he did not know what her answer would be and, if she
denied it, the question could have alienated the jury. (ECF No. 10-7 at 110.) That was a reasonable
strategic decision.
Brown gets no further in complaining about trial counsel’s failure to elicit his testimony
concerning the specific act of intercourse. Brown has not shown there was any dispute over
whether he and L.S. engaged in intercourse and it is unclear what material testimony he thinks was
missed. In his reply, Brown argues that the failure to elicit this testimony was prejudicial because
during closing arguments, the prosecutor argued that while Brown provided details about what
happened “around the actual crime,” Brown “glossed over the actual crime that occurred, the
sexual intercourse that he forced on [L.S.].” (ECF No. 29 at 7 (citing ECF No. 10-4 at 22.)
Brown’s argument fails for multiple reasons. As an initial matter, he waived this argument by
raising it for the first time in reply. See Darif v. Holder, 739 F.3d 329, 336–37 (7th Cir. 2014)
(“[A]rguments raised for the first time in a reply brief are waived.”); see also United States v.
Collins, 796 F.3d 829, 836 (7th Cir. 2015) (“[The] [c]ourt has long warned that perfunctory and
undeveloped arguments are deemed waived.”) (internal quotation marks omitted). Moreover,
waiver aside, Brown’s critique of counsel’s performance fails fundamentally because he never
explains what the unelicited testimony would have been. The record in fact confirms that he had
ample opportunity to offer this testimony. On direct examination Brown’s counsel asked Brown,
“Apparently the two of you are going to start to engage in intercourse?” (ECF No. 10-3 at 94.)
Rather than testifying about the actual sex act, Brown went off on a tangent regarding the
smoothness of his feet due to his use of a pumice stone. (Id. at 95.) Brown’s counsel attempted
to redirect Brown and asked, “[h]ow did the sex start?” (Id.) Brown testified that he was kissing
L.S.’s neck and ear and “physically wooing her” and described L.S. wrapping her legs wrapped
around his sides while in a missionary position. (Id. at 95–97.) At the Machner hearing, Brown’s
trial counsel testified that Brown provided details about what happened before and after the sex
act but refused to talk about the actual sex act. (ECF No. 10-9 at 28.) According to trial counsel,
once Brown decided he would testify, Brown told his counsel that “he knew . . . what he would
have to testify to.” (ECF No. 10-7 at 30.) It appears that Brown had multiple opportunities to
testify as to details regarding the specific sex act but, for whatever reason, opted not to. There is
no evidence of ineffective assistance on this issue.
In the end, the Wisconsin Court of Appeals reasonably concluded that counsel’s failure to
elicit the additional testimony Brown identifies would not have created a reasonable probability of
an acquittal. It emphasized the existing evidence offered by Brown concerning the consensual
nature of the encounter and reasoned that the jury did not believe his self-serving testimony and
ultimately credited the testimony of L.S. This is a reasonable analysis under Strickland, precluding
habeas relief. While Brown insists that the court of appeals “erroneously applied an outcome
determinative test for prejudice contrary to Strickland” rather than using the “reasonable
probability” standard, (ECF No. 21 at 45), the record refutes this contention. The court of appeals
articulated the correct standard from Strickland and then reasonably applied it to Brown’s case.
Brown’s habeas challenge to his counsel’s failure to elicit testimony therefore fails.
II. The Wisconsin Court of Appeals Did Not Unreasonably Apply Strickland in
Concluding Brown Was Not Prejudiced by Trial Counsel’s Failure to Object to the
Police Officer’s Testimony Regarding L.W.’s Consistent Statements.
Brown’s second ineffective assistance argument is that trial counsel improperly failed to
object to the police officer’s testimony recounting L.S.’s prior report of her encounter with Brown,
testimony that was consistent with L.S.’s trial testimony. (ECF No. 21 at 41.) Brown contends
that this inadmissible evidence essentially allowed the police officer to repeat statements and
allegations made by L.S. to police and “improperly bolstered L.S.’s credibility about whether or
not she consented to the sexual intercourse.” (Id. at 42.) Brown further maintains that the
prosecution argued that L.S. was more credible because her trial testimony was consistent with the
officer’s testimony about her prior statement. (Id.) Brown believes that this testimony
“inappropriately tipped the scales in favor of L.S.’s credibility and undercut [his] credibility.” Id.4
The court of appeals determined that the officer’s testimony likely was not admissible and
trial counsel’s failure to object to its admittance could be deemed a deficiency. Brown, 2018 WL
5821784, at *4. But it concluded that Brown had again failed to show prejudice under Strickland.
Id. It noted that the police officer’s testimony of L.S.’s prior consistent statements included facts
that supported Brown’s defense. Id. For example, the officer testified that L.S. admitted to her
that she did not scream for help during the assault, leave her residence while Brown was in the
shower, or immediately call the police after the assault. And, given the abundance of details
provided by Brown regarding the night of the incident, many of which suggested that L.S. was a

4 Although he raised the issue in state court, Brown does not challenge counsel’s failure to object to Simmons’s
testimony, which similarly corroborated L.S.’s account.
willing participant in their sexual encounter, Brown had not shown that the addition of this
testimony was prejudicial. Id. The court explained that even if the failure to object was an error,
such evidentiary errors do not have a cumulative impact “sufficient to undermine confidence in
the outcome of the trial, especially if the evidence against the defendant remains compelling.” Id.
(quoting State v. Thiel, 665 N.W.2d 305, 322–23 (Wis. 2003).
Again, the issue on habeas review is whether the court of appeals unreasonably applied
federal law when it concluded that any error was not prejudicial. The test for prejudice on habeas
is not whether, but for counsel’s unprofessional errors, there is a reasonable probability of a
different result; the defendant must show that no “fairminded jurists could disagree” that the state
court’s decision conflicts with Strickland. See Harrington, 562 U.S. at 102. Brown has not met
this high bar. The Wisconsin Court of Appeals did not unreasonably apply clearly established
Supreme Court precedent in rejecting this ineffective assistance of counsel claim. It reasonably
concluded that whether Brown’s ineffective-assistance arguments were considered individually or
in combination, Brown had not established that he was prejudiced. This conclusion has ample
support in the record. Brown can establish neither that the state appellate court’s decision was
contrary to or involved an unreasonable application of Strickland’s prejudice standards. Nor, as
the record supports the state court’s findings, can Brown demonstrate that the decision involved
an unreasonable determination of the facts. Accordingly, Brown’s petition for writ habeas corpus
is denied.
CERTIFICATE OF APPEALABILITY
Under Rule 11(a) of the rules Governing Section 2254 Cases, the Court must consider
whether to issue a certificate of appealability. A court may issue a certificate of appealability only
if the applicant makes a substantial showing of the denial of a constitution right. See 28 U.S.C.
§ 2253(c)(2). The standard for making a “substantial showing” is if “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.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). The Court
declines to issue a certificate of appealability because reasonable jurists could not debate the
Court’s decision to deny the petition on the merits.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Brown’s petition for writ of habeas corpus, ECF No. 1
is DENIED, and the case is DISMISSED. The Clerk of Court is directed to enter judgment
accordingly.
IT IS FURTHER ORDERED that because the Court does not find that a reasonable jurist
could conclude that the petition should have been resolved in a different manner, Slack v.
McDaniel, 529 U.S. 473, 484 (2000), a certificate of appealability SHALL NOT ISSUE.
Dated at Milwaukee, Wisconsin on March 14, 2024.
s/ Brett H. Ludwig
BRETT H. LUDWIG
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10719650. Public record. Not legal advice.