Simmons v. Thurmer
Filing
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ORDER signed by Judge J P Stadtmueller on 3/27/09 as follows: granting 50 petitioner's motion for extension of time to file a reply brief; denying as moot 54 petitioner's motion to appoint Robert Henak as counsel for the purposes of an evidentiary hearing; and, denying petitioner's petition for a writ of habeas corpus and dismissing this case on the merits. (cc: all counsel)(nm)
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
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A N T O N IO L. SIMMONS, Petitioner, v. M IC H A E L THURMER, R e s p o n d e n t. ____________________________________________ C a s e No. 07-CV-604
ORDER
O n July 2, 2007, Antonio L. Simmons ("Simmons") filed a petition for a writ of h a b e a s corpus pursuant to 28 U.S.C. § 2254, challenging his 2001 W isc o n s in state c o n vic tio n for recklessly endangering safety while using a dangerous weapon. In his p e titio n , Simmons asserts three grounds for relief:1 (1) that his Fourteenth A m e n d m e n t due process rights were violated when he was denied a request for a n e w trial based on new evidence; (2) that he was deprived of effective assistance of tria l counsel in violation of the Sixth Amendment; and (3) that his appellate counsel o n direct appeal was also ineffective. Before addressing the merits of Simmons's p e titio n , the court reviews the procedural and factual background of Simmons's c a se .
Although Sim m o n s lists six separate grounds for relief, the court finds that grounds three through s ix of Sim m o n s 's petition present the sam e issue; that is, whether Sim m o n s 's trial and appellate counsel were in e f f e c t iv e .
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B AC K G R O U N D S o m e tim e in the early morning hours of July 8, 2000, Simmons was involved in a heated argument with James Gray ("James") at a tavern located near the corner o f North 42nd Street and W e s t Capital Drive in Milwaukee, W is c o n s in . The
a rg u m e n t soon turned violent, with James smashing his partially filled glass of H e n n e s s e y cognac over Simmons's head. A bouncer at the tavern intervened and to ld James and his sister, Precious Gray ("Precious"), to leave while Simmons re m a in e d in the tavern. James and Precious, along with Precious's friend Andrea C ra w le y ("Crawley"), left the tavern and got into Precious's black Pontiac Grand Am. M in u te s later, a white two-door car approached Precious's car, and its occupant o p e n e d fire on James, Precious and Crawley. In a hail of bullets, Precious was hit o n c e , and James was hit eight times. (Court of Appeals Decision, March 13, 2007, ¶ 2, Answer Ex. B, Docket #21). The shooting victims and the tavern's bouncer alerted police of the incident, a n d identified Simmons as the shooter. (Court of Appeals Decision, July 30, 2004, ¶ 3). Police later arrested Simmons and he was charged in Milwaukee County C irc u it Court with three counts of recklessly endangering safety while using a d a n g e ro u s weapon in violation of W is . Stat. §§ 941.30(1)-(2) and 939.63.2 At trial, th e prosecution called six witnesses.
The W is c o n s in Court of Appeals' opinions in this case also refer to an additional charge of being a f e lo n in possession of a weapon, to which Sim m o n s pled guilty. (Court of Appeals Decision, July 30, 2004, ¶ 1 , Answer Ex. E, Docket #21). However, Sim m o n s has not challenged the validity of his guilty plea on that c h a rg e .
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J a m e s testified that Simmons came up to him in the tavern and pushed him, a n d that he responded by knocking Simmons over the head with his drink. After o th e rs broke up the fight, James stated that he left the tavern with his sister P r e c io u s , and her friend Crawley. As they left the area in Precious's car, James tes tifie d that a small white car pulled up along the passenger side of Precious's car. F r o m the rear passenger seat of Precious's car, James testified that he got a good lo o k at Simmons before the bullets started flying. James also recalled Simmons te llin g him to die as Simmons shot at him. On cross-examination, Simmons's a tto rn e y questioned James on the number of drinks he had before the shooting, on c e rta in details about the shooting, and on James's past juvenile delinquencies. (Transcript, February 6, 2001, 17-56, Answer Ex. J 44B, Docket #21). P r e c io u s generally corroborated James's testimony, testifying that she w itn e s s e d Simmons confront James in the tavern and that James hit Simmons on th e forehead with his drink. Precious stated that both Simmons and James seemed d ru n k and that she thought Simmons might have been carrying a gun in the tavern. S h e also stated that James wanted to fight Simmons outside the tavern, but that J a m e s eventually got into the backseat of her car to leave. Precious testified that s h e was driving away from the tavern when Simmons drove up in a white car and s ta rte d firing. Precious stated that she and Crawley abandoned the car by rolling out o f the driver's side door onto the ground. Precious also claimed to have seen S im m o n s again as he drove away from the scene in the white car. On crosse xa m in a tio n , Precious confirmed that she knew Simmons prior to the evening of the -3-
s h o o tin g , and that Simmons had come over to her house on two or three occasions. (T ra n s c rip t, February 6, 2001, 54-111, Answer Ex. J 44B, Docket #21). C ra w le y also testified that she was in the tavern during the initial confrontation b e tw e e n James and Simmons, and that she left the tavern soon after with James a n d Precious. From the front passenger seat of Precious's car, Crawley claimed she s a w Simmons shooting out the driver's side window of a white two door car. C ra w le y stated that she then ducked and followed Precious out the driver's side door o f Precious's car. Crawley stated that she did not know Simmons prior to that e ve n in g and, on cross-examination, Crawley admitted that she saw the shooter for le s s than a second and identified Simmons from a photo array presented to her h o u rs after the shooting. (Transcript, February 6, 2001, 111-27, Answer Ex. J 44B, D o c k e t #21). T y r o n e Ramsey ("Ramsey"), the bouncer that intervened after James hit S im m o n s with his glass, testified that Simmons and James were frequent customers a t the tavern. Ramsey stated that he knew both men only through their visits to the ta ve rn . Ramsey testified that, on the evening of the shooting, he and the other b o u n c e rs separated James and Simmons because "some blows was thrown" b e tw e e n the two men. Ramsey claimed that he told James and his sister Precious to leave, and that Simmons was kept in the tavern for ten to fifteen minutes after J a m e s and Precious left. Ramsey also stated that upon Simmons leaving the ta ve rn , Ramsey witnessed another man try to slip Simmons what Ramsey identified a s a .25 caliber handgun. Ramsey claimed he then saw Simmons get into a white -4-
tw o -d o o r car and later witnessed Simmons outside that car shooting a gun at the car c a rryin g James and Precious. Shortly after the shooting, Ramsey gave a description to police of Simmons and of the white car he was driving. Ramsey also admitted th a t he had been convicted of a crime in the past. On cross-examination, Ramsey s ta te d that he had knowledge of weapons from his work and the military, and he s ta te d that he did not think the gun Simmons used in the shooting was a .25 caliber b a s e d on the number of shots he heard. (Transcript, February 6, 2001, 128-53, A n s w e r Ex. J 44B, Docket #21). M ilw a u k e e Police Detective Kevin Armbruster ("Armbruster") also testified at S im m o n s 's trial. Armbruster stated that he responded to a police pursuit of a white tw o -d o o r car matching the description of a car driven by the suspected shooter. A r m b ru s te r testified that by the time he caught up with the vehicle, the driver had a b a n d o n e d the white Chevrolet Cavalier eleven blocks from the scene of the s h o o tin g . Armbruster said that he recovered several bullet casings from inside and a r o u n d the Chevy, including casings originating from .38 caliber and 9 millimeter weapon. He stated that technicians who checked the vehicle recovered no
id e n tifia b le fingerprints. Armbruster also confirmed that a woman near the vehicle w a s questioned about the driver of the vehicle. (Transcript, February 7, 2001, 11-42, A n s w e r Ex. J 45B, Docket #21). T h e final witness called by the prosecution was Milwaukee Police Lieutenant M ic h a e l Dubis ("Dubis"). Dubis testified that he responded to the scene of the s h o o tin g outside the tavern, and found six .38 caliber shell casings near Precious's -5-
b u lle t-rid d le d Pontiac. Dubis further testified that police testing indicated that the m a rk in g s on the casings found at the scene were consistent with the markings on th e .38 caliber casing found in the white Chevy. (Transcript, February 7, 2001, 4 3 -6 2 , Answer Ex. J 45B, Docket #21). F in a lly , Simmons called his friend John Lindsey ("Lindsey") as a defense w itn e s s . Lindsey testified that he drove Simmons to the tavern on the evening of the s h o o tin g . Lindsey claimed he saw Simmons immediately after James hit Simmons w i t h his drink, at which point Simmons was bleeding from a gash in his forehead. L in d s e y stated that he left the tavern with Simmons about fifteen minutes after J a m e s and Precious left, and that he and Simmons got into Lindsey's red O ld s m o b ile Cutlass to go to the hospital. As they drove away, Lindsey testified that h e noticed two cars on the street, with gunfire coming from one of the cars. Lindsey te s tifie d that when they arrived at the hospital, however, Simmons did not want to go in s id e because Simmons said he had outstanding arrest warrants. On cross-
e xa m in a tio n , Lindsey admitted that he never told his story to police. (Transcript, F e b ru a ry 7, 2001, 63-77, Answer Ex. J 45B, Docket #21). A fte r deliberating for just under an hour, the jury returned a guilty verdict on tw o counts of first degree recklessly endangering safety by use of a dangerous w e a p o n , and one count of second degree recklessly endangering safety by use of a dangerous weapon. (Transcript, February 7, 2001, Answer Ex. J 46B, Docket # 2 1 ). Before sentencing, Simmons moved for a new trial based on new evidence a n d ineffective assistance of counsel. Simmons attached an affidavit from a woman -6-
n a m e d Zakea Jones ("Zakea"), who claimed responsibility for the shooting. A p p a r e n tly , Zakea was Simmons's girlfriend and was in the tavern during the initial a lte rc a tio n between Simmons and James. She also claimed to have been in the w h ite Chevy Cavalier on the night of the shooting with someone who went by the n a m e of "C-Note." (Zakea Aff., Pet'r Ex. 33, Docket #43). At the sentencing h e a rin g , Simmons appeared with a new appointed counsel and asked for an e vid e n tia ry hearing while asserting many of the same points he now makes in his h a b e a s petition. (Transcript, June 11, 2001, Pet'r Ex. 38, Docket #43). The circuit c o u rt denied Simmons's motion and sentenced him to twenty-six years in prison to b e followed by thirteen years of extended supervision. (Judgment, June 15, 2001, A n s w e r Ex. A, Docket #21). In February and March of 2003, Simmons moved to modify his sentence and fo r a new trial. Simmons included two additional affidavits from alleged witnesses S h e r ie Purifoy ("Purifoy") and Kina Jackson ("Jackson"). In her affidavit, Purifoy s ta te d that she was in the tavern on the night of the shooting, and saw Simmons get in to a "Red Cutlass" automobile driven by someone she knew only as John. (Purifoy A ff., Pet'r Ex. 3, Docket #43). Jackson averred that she too was in the tavern that e ve n in g , and saw Simmons get into the passenger side of a car driven by "an u n k n o w n male" and drive off east on Capital Drive. (Jackson Aff. Pet'r Ex. 4, Docket # 4 3 ). Based on these affidavits, Simmons asked the circuit court to grant him a new tr ia l. Simmons also argued that the trial judge improperly imposed a harsher
s e n te n c e because the judge believed Simmons had manipulated his girlfriend Zakea -7-
in to making a false confession. In an opinion dated May 9, 2003, the Milwaukee C o u n ty Circuit Court denied Simmons's motions, finding that the evidence against S im m o n s was overwhelming, and that any presumption that Simmons was re s p o n s ib le for Zakea's attempted confession had adequate support in the record. T h e circuit court also found that Simmons's sentence was not excessive, and that th e affidavits of Jackson and Purifoy did not create a reasonable probability of a d iffe re n t trial result if the two were to testify at a new trial. (Order, May 9, 2003, Pet'r E x. 40, Docket #43). Simmons appealed to the W is c o n s in Court of Appeals, claiming that the circuit c o u rt erred in denying his request for an evidentiary hearing to determine whether a new trial was warranted, and in denying Simmons's request for resentencing. In a decision dated July 30, 2004, the W is c o n s in Court of Appeals affirmed the circuit c o u rt's order. The court of appeals denied Simmons's claim that he was entitled to a new trial, and held that the affidavits of Purifoy and Jackson "at most . . . e s ta b lis h e d a possibility that a new trial could produce a different result, not a `su b s ta n ti a l degree of probability' that it would do so." (Court of Appeals Decision, J u ly 30, 2004, ¶17, Pet'r Ex. 29, Docket #43) (emphasis in original). The court also d e n ie d Simmons's request for resentencing, holding that Simmons had not shown th a t the sentencing judge relied on inaccurate information or that the sentence was o th e rw is e unjustifiable. (Court of Appeals Decision, July 30, 2004, ¶¶ 27, 39, Pet'r E x. 29, Docket #43).
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S im m o n s then filed a motion in Milwaukee County Circuit Court seeking fu rth e r postconviction relief for ineffective assistance of trial counsel and appellate c o u n s e l. In support of his motion, Simmons attached affidavits from three witnesses, T o ro n to W o o te n , Clebern Peel and Tawanda Jones, all of whom claimed to have w itn e s s e d the fight between Simmons and James in the tavern, and all of whom also c la im e d to have seen Simmons get into the passenger seat of a red car and leave th e area. (W o o te n , Peel and Jones Aff., Pet'r Ex. 5-7, Docket #43). Simmons also s u b m itte d the affidavit of Elijah Brooks ("Brooks"), who similarly claimed to have w itn e s s e d Simmons getting into a red car, but who also claimed to have seen a d iffe re n t unidentified man shooting from a white car. (Brooks Aff., Pet'r Ex. 2, D o c k e t #43). A fellow inmate of both Brooks and Simmons completed his own a f fid a vit stating that he heard Brooks say that someone other than Simmons shot J a m e s . (Pet'r Appellate Br. App., Answer Ex. D, Docket #21). Simmons argued that his trial counsel was ineffective for myriad reasons, and th a t his appellate counsel was ineffective for not raising the issue of Simmons's trial c o u n s e l performance on direct appeal. The circuit court found that Simmons had w a ive d his claims of ineffective assistance of trial counsel because he did not raise th e m on direct appeal. In its order, the circuit court considered and rejected
S im m o n s 's claims of ineffective assistance of appellate counsel, finding Simmons h a d failed to establish any prejudice resulting from his counsel's alleged s h o rtc o m in g s . (Order, January 3, 2006, Pet'r Ex. 30, Docket #43). The circuit court
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d e n ie d Simmons's motion for reconsideration, and Simmons once again appealed. (O rd e r, February 7, 2006, Pet'r Ex. 31, Docket #43). O n appeal, the W is c o n s i n Court of Appeals affirmed the circuit court. The c o u r t of appeals held that the affidavits provided by additional witnesses did not w a rra n t a new trial because any new evidence those witnesses might have provided w a s unlikely to lead to a different result. The court of appeals also found that S im m o n s was negligent in not discovering the alleged evidence sooner, since the a ffid a v its were all made by Simmons's friends. On Simmons's ineffective assistance o f counsel claims, the court of appeals held that Simmons had waived his claims of in e ffe c tive assistance of trial counsel, and that Simmons's appellate counsel was not in e ffe c tive . (Court of Appeals Decision, March 13, 2007, Answer Ex. B, Docket #21). S im m o n s appealed to the Wisconsin Supreme Court, which denied review on June 1 2 , 2007. (Answer Ex. C, Docket #21). ANALYSIS T h e Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U .S .C . § 2254, governs the federal courts' authority to issue writs of habeas corpus. U n d e r AEDPA, when a constitutional claim is adjudicated on the merits by a state c o u rt, a federal court may only grant habeas relief if the state court's decision was c o n tra ry to, or an unreasonable application of, clearly established federal law as d e te rm in e d by the Supreme Court, or if the state court's determination of the facts w a s unreasonable in light of the evidence presented. See 28 U.S.C. § 2254(d). T h e re fo re , a court reviewing a habeas petition must evaluate the reasonableness of -10-
th e state court's decision, and not merely whether the state court decision was in c o rre c t or erroneous in its result. See Williams v. Taylor, 529 U.S. 362, 410-12 (2 0 0 0 ). All factual determinations of the state court are presumed correct unless the p e titio n e r rebuts such determinations by clear and convincing evidence. See 28 U .S .C . § 2254(e)(1). Before a federal court may address the merits of a habeas p e titio n , the petitioner must fairly present his or her federal claims in state court. See B a ld w in v. Reese, 541 U.S. 27, 29, 32 (2004) (holding a "prisoner does not fairly p re s e n t a claim to a state court if that court must read beyond a petition or a b rie f . . . in order to find material" that alerts it to the presence of a federal claim). T h e court now turns to the specific claims presented in Simmons's petition. 1. N e w ly Discovered Evidence In his petition, Simmons asserts that newly discovered evidence in his case re q u ire s that he be granted a new trial under the Fourteenth Amendment of the C o n s titu tio n . The W is c o n s in Court of Appeals rejected this argument on state law g ro u n d s , finding that the additional evidence Simmons presented did not meet W is c o n s in 's five-part test for granting a new trial. (Court of Appeals Decision, March 1 3 , 2007 ¶¶ 7-8, Answer Ex. B, Docket #21). Although Simmons included newly d is c o ve re d evidence as a separate ground for relief in his petition, Simmons has not d e ve lo p e d this argument in either his brief in support or reply brief. In general, newly d is c o ve re d evidence relating to the guilt of a state prisoner is not an independent g ro u n d upon which the court may grant habeas relief. See Johnson v. Bett, 349 F .3 d 1030, 1038 (7th Cir. 2003) (citations omitted). Rather, such evidence must -11-
re la te to a constitutional violation separate and apart from any claim of innocence. Id . Therefore, the court declines to consider the newly discovered evidence
S im m o n s puts forth as an independent ground for granting habeas relief. 2. In e ffe c tive Assistance of Trial Counsel In his petition, Simmons claims that his appointed trial counsel, Michael C h e rn in ("Chernin"), was ineffective for the following reasons: (1) failing to in ve s tig a te and call potential witnesses to testify in support of Simmons's alibi; (2) fa ilin g to file a notice of alibi pursuant to W isc o n s in statute; (3) failing to consult with S im m o n s on trial strategy; (4) failing to adequately impeach and cross-examine te s tifyin g witnesses for the prosecution; (5) failing to introduce prior inconsistent s ta te m e n ts of testifying witnesses for the prosecution; and (6) failing to seek e xc lu s io n of certain prosecution witnesses. In considering Simmons's postconviction motion to vacate, set aside or correct h is sentence, the W is c o n s in Court of Appeals held that Simmons had waived his rig h t to directly challenge the effectiveness of his trial counsel because he had not ra is e d the issue on direct appeal. Under W is co n s in law, prisoners must raise any a v a ila b le grounds for relief in an initial postconviction motion or direct appeal, unless th e re exists a sufficient reason for failing to raise an issue in an original motion or a p p e a l. See Wisconsin v. Escalona-Naranjo, 185 W is .2 d 168, 185-86 (1994) (citing W is . Stat. 974.06(4)). The court of appeals held, however, that a successful claim o f ineffective assistance of appellate counsel could overcome such a procedural d e fa u lt. (Court of Appeals Decision, March 13, 2007, ¶ 11, Answer Ex. B, Docket -12-
# 2 1 ). The court of appeals then found that, as a matter of federal law, Simmons's p o s tc o n vic tio n counsel was not ineffective because Simmons had not suffered p re ju d ic e as a result of his postconviction counsel's decision not to raise the issue o f ineffective assistance of trial counsel on direct appeal. D e c isio n , March 13, 2007, ¶ 12, Answer Ex. B, Docket #21). Similarly, where a state court declines to address a state prisoner's federal c la im for failure to meet state procedural requirements, the prisoner has procedurally d e fa u lte d on that claim for purposes of federal habeas relief, "unless the prisoner c a n demonstrate cause for the default and actual prejudice as a result of the alleged vio la tio n of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1 9 9 1 ) (discussing the independent and adequate state ground doctrine).3 A habeas p e titio n e r who has procedurally defaulted on a federal claim in state court may also o ve rc o m e that default by showing ineffective assistance of appellate counsel, "but o n ly if that ineffectiveness itself constitutes an independent constitutional claim." E d w a rd s v. Carpenter, 529 U.S. 446, 447 (2000). Here, it appears that Simmons p ro c e d u ra lly defaulted in state court on his federal claim of ineffective assistance of tria l counsel. Accordingly, as long as the W is c o n s in Court of Appeals applied the p ro p e r United States Supreme Court precedents in a reasonable manner when it d e te rm in e d that Simmons had not established a claim of ineffective assistance of (Court of Appeals
For reasons not readily apparent to the court, the Attorney General of W is c o n s in has not discussed th is rather com p le x issue of procedural default in opposing Sim m o n s 's petition.
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a p p e lla te counsel, the court has no basis to grant Simmons habeas relief under 28 U .S .C . § 2254(d). 3. In e ffe c tive Assistance of Appellate Counsel In his petition, Simmons claims that his appointed counsel on direct appeal, W illia m Tyroler ("Tyroler"), was ineffective in failing to raise the issue of ineffective a s s is ta n c e of trial counsel on Simmons's direct appeal. Simmons claims that he told T yro le r to raise the issue to the W is c o n s in Court of Appeals, but that Tyroler decided in s te a d to pursue only Simmons's claims based on newly discovered evidence and im p ro p e r sentencing. Specifically, Simmons argues that the same six grounds s h o w in g the unreasonable performance of his trial counsel, Chernin, also d e m o n s tra te the ineffectiveness of his appellate counsel, Tyroler. Simmons does not allege that W is c o n s in courts applied the incorrect legal s ta n d a rd to his ineffective assistance claim. Rather, Simmons petition asserts that W is c o n s in courts unreasonably applied federal law governing ineffective assistance c la im s under the Sixth Amendment. A state court's application of federal law is u n re a s o n a b le when it "identifies the correct governing legal principle from . . . [the S u p re m e Court's] . . . decisions but unreasonably applies that principle to the facts o f petitioner's case." Rompilla v. Beard, 545 U.S. 374, 380 (2005) (citations and in te rn a l quotation marks omitted). In its decision, the W is c o n s in Court of Appeals rejected Simmons's contention th a t Tyroler was ineffective for not pursuing the issue of ineffective assistance of trial c o u n s e l on Simmons's first direct appeal. In doing so, the court of appeals purported -14-
to follow the Supreme Court's teachings in Strickland v. Washington, 466 U.S. 668 (1 9 8 4 ). (Court of Appeals Decision, May 13, 2007, ¶ 12, Answer Ex. B, Docket #21). U n d e r Strickland, a petitioner alleging ineffective assistance of counsel must show th a t counsel's performance fell below reasonable professional norms, and that the p e titio n e r suffered prejudice as a result of counsel's performance. See W ig g in s v. S m ith , 539 U.S. 510, 521 (2003) (citing Strickland, 466 U.S. at 687-88). Rather than a d d re s s in g the reasonableness of the acts or omissions of Simmons's counsel, the W is c o n s in Court of Appeals focused on the prejudice prong of the Strickland fra m e w o rk . As the court of appeals correctly noted, a court considering an
in e ffe c tive assistance claim may dispose of it on either prejudice or performance g ro u n d s . See Strickland, 466 U.S. at 697. To establish prejudice, the petitioner m u s t show "a reasonable probability that, but for counsel's unprofessional errors, the re s u lt of the proceeding would have been different." Id. at 694. The probability of a different result is "reasonable" if it is "sufficient to undermine confidence in the o u tco m e ." Id. T h e court of appeals first addressed the four affidavits Simmons had s u b m itte d from potential defense witnesses who did not testify at his trial.4 The court o f appeals found that only one of the potential witnesses, Brooks, claimed to have a c tu a lly seen the shooting, and Brooks stated only that he might be able to identify
As the court noted above, a fifth affidavit was also subm itte d by an individual claim in g only to have o v e r h e a r d Sim m o n s talking with a witness about the night of the shooting. The court of appeals dism is s e d th e relevance of this affidavit in a footnote of its decision, and Sim m o n s has not dem o n s tr a te d how such b la ta n t hearsay could have been adm itt e d at trial.
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the shooter. The other witnesses, W o o t e n , Peel and Jones, only claimed to have w itn e s s e d Simmons getting into a red car, but did not claim to have witnessed the s h o o tin g . The court of appeals questioned the credibility of all of Simmons's
p o te n tia l new witnesses, citing the fact that all of them were Simmons's friends, and th e fact that none of them reported their versions of events to police. The court of a p p e a ls held that "[b]ased on their affidavits, it is entirely possible that Simmons c o u ld have exited the red car, entered into the white one found abandoned later, and s h o t the victims." (Court of Appeals Decision, May 13, 2007, ¶ 16, Answer Ex. B, D o c k e t #21). The court implicitly held that the affidavits, together, did not create a re a s o n a b le probability of a different result at trial and, therefore, Simmons had not s u ffe re d prejudice from his appellate counsel's decision not to raise the point on a p p e a l that Simmons's trial counsel did not find and call those affiants as defense w itn e s s e s . (Court of Appeals Decision, May 13, 2007, ¶ 16, Answer Ex. B, Docket # 2 1 ). The court of appeals went on to briefly examine the conduct of Simmons's trial c o u n s e l and his postconviction appellate counsel, finding that both attorneys acted re a s o n a b ly in searching out potential defense witnesses. The court noted that S im m o n s only provided his trial counsel with the name and cell phone number of o n e of the persons from whom Simmons later elicited affidavits, and that Simmons's p o s tc o n vic tio n appellate counsel had looked into some of the witnesses and found th e m to be unhelpful to Simmons's case. (Court of Appeals Decision, May 13, 2007, ¶ 17, Answer Ex. B, Docket #21). -16-
A fte r reviewing the affidavits submitted by Simmons in support of his in e ffe c tive n e s s of appellate counsel claim, as well as the written decisions of the c irc u it court and court of appeals, the court finds that the W is c o n s in Court of Appeals re a s o n a b ly applied the principles of Strickland. Having found the newly discovered w itn e s s e s to be less than fully credible, and having found their proffered testimony to be cumulative to evidence adduced at trial, the circuit court and court of appeals re a s o n a b ly concluded that these new witnesses' testimony did not undermine c o n fid e n c e in the result of Simmons's trial. Accordingly, the court of appeals was a ls o reasonable in finding no prejudicial effect from Simmons's postconviction c o u n s e l's choice not to present these new witnesses on appeal in the context of an in e ffe c tive assistance of trial counsel claim. N e xt, the W is c o n s in Court of Appeals addressed Simmons's contention that h is appellate counsel was ineffective because he did not raise, on appeal, the in e ffe c tive n e s s of trial counsel for failing to investigate and file a notice of alibi. S im m o n s claims that his trial counsel, Chernin, did not adequately investigate S im m o n s 's alibi that he was on his way to the hospital at the time of the shooting, a n d that he also failed to file a notice of alibi as required by state statute. See W is . S ta t. § 971.23(8). Simmons also claims that he was not allowed to testify in his own d e fe n s e because Chernin did not file a notice of alibi. The court of appeals held that Simmons did not suffer any prejudicial effects fro m Chernin's failure to file a notice of alibi. The court found that Simmons was n e ve r prevented from testifying, but rather elected not to testify, and found that the -17-
p ro s e c u to r never sought to limit the submission of evidence based on the lack of an a lib i notice. (Court of Appeals Decision, May 13, 2007, ¶¶ 18-20, Answer Ex. B, D o c k e t #21). The transcript record reflects that Simmons waived his right to testify in open court. (Transcript, February 7, 2001, 40, Answer Ex. J 45B, Docket #21). T h e court of appeals noted that the matters to which Simmons claimed he would h a ve testified were presented to the jury through the testimony of Lindsey and th ro u g h Chernin's cross-examination of Precious. The court also rejected
S im m o n s 's contention that the state would have conducted a more thorough in ve s tig a tio n and dismissed all charges against him had Chernin filed a notice of a lib i, finding it mere "wishful thinking." (Court of Appeals Decision, May 13, 2007, ¶ 20, Answer Ex. B, Docket #21). The court agrees, and finds that the W is c o n s in C o u rt of Appeals again reasonably applied Strickland principles. Having found that th e lack of an alibi notice did not hinder Simmons's ability to testify, and that the p r o s e c u t o r had never sought to exclude evidence on lack of notice grounds, the c o u rt of appeals reasonably concluded that Chernin's failure to file a notice did not h a ve any impact on the result of Simmons's trial. Hence, Simmons's appellate c o u n s e l had no basis on which to claim ineffective assistance of trial counsel for C h e rn in 's actions with respect to the notice of alibi. F i n a lly , the court of appeals addressed Simmons's assertion that his trial c o u n s e l was ineffective for failing to consult with him on trial strategy. Simmons c la im s that Chernin met with him only once for twenty minutes on the day his trial b e g a n and that the court of appeals improperly assumed that Chernin had spend -18-
c o n s id e ra b le time preparing for trial without Simmons. Simmons also asserts that C h e rn in improperly advised Simmons not to testify. The court of appeals again fou n d that Simmons had not suffered prejudice from Chernin's relatively short c o n s u lta tio n with Simmons, or from Chernin's advice not to testify. The court noted th a t Simmons had waived his right to testify in open court, and only after the circuit ju d g e explained that Simmons had the right to testify. The court also found that S im m o n s 's alibi was fairly presented at trial through Lindsey's testimony. In
s u m m in g up its conclusion that Simmons had suffered no prejudice from either his tria l or appellate counsel's decisions, the court of appeals wrote that "[t]o be sure, c o n flic tin g evidence was introduced by the State and no physical evidence tied S im m o n s to the scene. The jury was told of these deficiencies and they chose to a c c e p t the version of the events detailed by the State's witnesses." (Court of A p p e a ls Decision, May 13, 2007, ¶ 22, Answer Ex. B, Docket #21). The court finds the W isc o n s in Court of Appeals decision reasonable with re s p e c t to Simmons's claim that his trial counsel did not adequately consult with him o n trial strategy. Simmons argues that his situation is similar to that of the petition in Washington v. Smith, 219 F.3d 620 (7th Cir. 2000). In Washington, the Seventh C irc u it found the case presented by petitioner's defense counsel to be "crippled." Id . at 633. In that case, the petitioner had testified at trial and provided an alibi, but h is attorney failed to call a number of available and credible witnesses to corroborate th e petitioner's story. See id. at 633-34. The court also found that counsel had not re a d a police report crucial to the case. See id. at 634. Unlike Washington, the state -19-
c o u rt in this case found that the additional defense witnesses Simmons identified w e re not credible, and that Simmons's trial counsel had fairly presented Simmons's d e fe n s e through cross-examinations and calling Lindsey to testify. Moreover, the c o u rt of appeals found, and Simmons's appellate counsel reiterated, that Simmons n e ve r made Chernin aware of all of Simmons's friends that could have been w itn e s s e s to the shooting. Simmons has not presented clear and convincing
e vid e n c e to dispute these findings. See Schriro v. Landrigan, 550 U.S. 465, 473-74 (2 0 0 7 ) (noting rebutable presumption that state court's factual findings are correct). T h e re fo re , Simmons has not demonstrated that Chernin's pretrial investigation, his d e c is io n s on what witnesses to call, or his advice that Simmons not testify were a n yth in g other than sound trial strategies. See Strickland, 466 U.S. at 689 (noting p re s u m p tio n that actions of counsel at trial are product of trial strategy). While C h e rn in had a duty to consult with Simmons on important decisions and to keep S im m o n s informed on important decisions, trial counsel are given wide latitude in m a k in g tactical decisions. See id. at 688-89. The court of appeals was reasonable in finding that Chernin made sufficient efforts to consult Simmons in order to fairly p re s e n t his defense. Subsequently, the court of appeals was also reasonable in not fa u ltin g Simmons's appellate counsel for not raising this issue on appeal. A lth o u g h the W is c o n s in Court of Appeals cited Simmons's additional c o n te n tio n s , those contentions were never specifically addressed in its written d e c isio n . However, the court notes that irrespective of the sparseness of a state c o u rt's reasoning, a federal court is powerless to grant habeas relief as long as the -20-
"s ta te court's decision is at least minimally consistent with the facts and c ircu m s tan c e s of the case." Hammer v. Karlen, 342 F.3d 807, 810 (7th Cir. 2003) (in te rn a l quotation marks omitted) (quoting Hennon v. Cooper, 109 F.3d 330, 335 (7 th Cir. 1997)). Simmons had asserted that his appellate counsel should have c la im e d that trial counsel was ineffective for failing to pursue areas of impeachment in cross-examining testifying witnesses for the prosecution, failing to introduce prior in c o n s is te n t statements of those witnesses and failing to seek exclusion of certain p ro s e c u tio n witnesses. After considering these additional contentions, the court fin d s that the decision of the Court of Appeals was minimally consistent with the fa c ts of Simmons's case, and that its overall application of Strickland to Simmons's c a s e was reasonable. Simmons argues that his trial counsel, Chernin, should have elicited additional te s tim o n y from Precious on Simmons's allegation that Precious had stolen money fro m Simmons in the past, and that Simmons had beaten up Precious. Respondent a s s e rts that eliciting this testimony from Precious at trial would have strengthened e v id e n c e of Simmons's motivation to get revenge on Precious and her brother J a m e s as much as it would have undermined Precious's credibility. The court c o n s id e rs Chernin's decision not to delve into the details of Precious's alleged theft o f Simmons's cash, and his subsequent beating of her, to have been a reasonable tria l strategy. See Strickland, 466 U.S. at 689. Moreover, the record reflects that, o n cross-examination, Chernin elicited from Precious that something happened
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b e tw e e n the two of them, and that she wanted nothing to do with Simmons. (T ra n s c rip t, February 6, 2001, 78-79, Answer Ex. J 44B, Docket #21). Simmons also argues that Chernin was ineffective in pointing out in c o n s is te n c ie s in the testimony of prosecution witnesses. Simmons asserts that P re c io u s and Crawley testified to more details than they originally offered to police a t the time of the shooting. W h ile in hindsight, the court agrees that Chernin could h ave cross-examined the prosecution witnesses differently, Simmons has not shown th a t Chernin's actual cross-examination demonstrated an unreasonable trial s tra te g y. In fact, Chernin questioned Precious and Crawley about inconsistencies b e tw e e n their testimony and police reports, but both women stated that they did not re m e m b e r what they told police immediately after the shootings. (Transcript, F e b ru a ry 6, 2001, 80-82, 126-27, Answer Ex. J 44B, Docket #21). Therefore, the c o u rt finds no evidence that Chernin's cross-examination of prosecution witnesses w a s inadequate. Equally, the court finds that Simmons's appellate counsel was re a s o n a b le in deciding not to raise this issue on appeal. Simmons next argues that Chernin should have investigated the law to better a rg u e that Precious, James and Crawley should have been sequestered before te s tifyin g . Simmons claims that Precious and Crawley shaped their testimony to be c o n s is te n t, because they were allowed to remain in the courtroom throughout each o the rs' and James's testimony. Respondent asserts that Chernin did seek to have a ll witnesses in the case sequestered, but the circuit court judge refused based on a W is c o n s in statute that allows victims to be present during trail. After reviewing the -22-
tra n s c rip t of Simmons's trial, the court is convinced that Chernin acted reasonably in seeking the sequestration of Precious, Crawley and James. Chernin moved to e xc lu d e witnesses from the courtroom before the trial, but the circuit court decided th a t excluding the victims was not necessary to provide Simmons a fair trial. (Pet'r E x . 35, Docket #43). W h a t is more, Chernin actually moved for a mistrial on the b a s is of non-sequestration of witnesses during the trial, which the circuit court d e n ie d on the basis of its previous ruling. (Transcript, February 6, 2001, 75-76, A n s w e r Ex. J 44B, Docket #21). While the circuit court may have improvidently e xe rc is e d its discretion in allowing key witnesses to remain in the courtroom, that e rr o r cannot be imputed on Chernin. The record reflects that Chernin vigorously a rg u e d to exclude Precious and Crawley from the courtroom. Therefore, the court fin d s no basis for a claim of ineffective assistance of trial counsel on this ground. Finally, Simmons argues that the W is c o n s in Court of Appeals erred in not c o n s id e r in g the cumulative effect of trial counsel's, and thereby appellate counsel's, e rro rs in assessing the prejudice suffered by Simmons. W h ile it is true that a p e titio n e r may demonstrate ineffective assistance by showing the cumulative effects fro m individual acts or omissions of counsel, see Williams v. Washington, 59 F.3d 6 7 3 , 683 (7th Cir. 1995), Simmons has not made a sufficient showing to d e m o n s tra te that the acts and omission of either Chernin, his trial counsel, or T yro le r, his appellate counsel, in the aggregate were sufficient to place the result of S im m o n s 's trial or appeal in reasonable doubt. Moreover, viewing Simmons's
p e titio n as a whole, Simmons has not shown that the result of his trial was -23-
fu n d a m e n ta lly unfair or unreliable. See Lockhart v. Fretwell, 506 U.S. 364, 369 (1 9 9 3 ) (holding that courts addressing prejudice must consider whether the result o f a criminal proceeding is fundamentally unfair or unreliable). The court agrees with th e finding of every state court that has examined Simmons's case: given the a d d itio n a l evidence that Simmons's claims should have been presented at trial, the e vid e n c e against Simmons remains more than sufficient to uphold his conviction. E v e n if Simmons had sufficiently shown his trial counsel to be ineffective, S im m o n s has not demonstrated that his appellate counsel was ineffective for not ra is in g a claim of ineffective assistance of trial counsel on direct appeal. While his a p p e lla t e counsel, Tyroler, certainly could have raised such a claim, the court is m in d fu l that appellate counsel is not required to raise every nonfrivolous claim on a p p e a l. See Smith v. Robbins, 528 U.S. 259, 287-88 (2000). Rather, appellate c o u n s e l may choose among all nonfrivolous claims on appeal to maximize the lik e lih o o d of success. Therefore, a petitioner claiming ineffective assistance of a p p e lla te counsel must show "that a particular nonfrivolous issue was clearly s tro n g e r than issues that counsel did present." Id. at 288. H e r e , Simmons has submitted portions of several letters from Tyroler, in which T y ro le r provides his rationale for raising only the issues relating to Simmons's s e n te n c in g and the circuit court's denial of an evidentiary hearing based on newly d is c o ve re d evidence. In those excerpts, Tyroler explains his belief that the two is s u e s he presented on appeal were stronger than Simmons's claim of ineffective a s s ista n c e of counsel. Tyroler wrote that after investigating Simmons's complaints -24-
re la tin g to Chernin's performance, he was not convinced that an ineffective a s s is tan c e claim would be successful on appeal. (Pet'r Ex. 15, 17, 18, Docket #43). B e c a u s e Simmons has not shown that his ineffective assistance of trial c o u n s e l claim was clearly stronger than the claims his appellate counsel actually ra is e d on appeal, the court finds that the W is c o n s in Court of Appeals reasonably c o n c lu d e d that Simmons's appellate counsel was not ineffective. The W is c o n s in C o u rt of Appeals also reasonably concluded that Simmons procedurally defaulted o n his claim of ineffective assistance of trial counsel. As a result, the court finds no b a s is on which to issue a writ of habeas corpus, and the court is obliged to deny S im m o n s 's petition in its entirety. 4. M o tio n s to Appoint Counsel and for Extension S im m o n s moves the court to appoint Robert Henak as his counsel for the p u rp o s e of representing Simmons during any evidentiary hearing the court may o rd e r. (Docket #54). Because the court finds that no evidentiary hearing is
n e c e s s a ry to resolve Simmons's petition on the merits, the court denies Simmons's m o tio n to appoint counsel as moot. S im m o n s also moved for a 45-day extension of time to file his reply brief. (D o c k e t #50). On April 29, 2008, the court granted Simmons's request to file a reply b rie f within 30 days of service of respondent's opposition brief. Respondent served h is opposition on June 17, 2008. As grounds for the extension, Simmons stated
th a t he needed extra time to better acquaint himself with the law through fellow in m a te s and use of the prison law library. The court grants Simmons's motion to -25-
e xte n d . Simmons filed his reply brief on July 31, 2008, and the court has taken into a c c o u n t the arguments contained therein in reaching its conclusion. Accordingly, IT IS ORDERED that Simmons's motion for extension of time to file a reply b rie f (Docket #50) be and the same is hereby GRANTED; IT IS FURTHER ORDERED that Simmons's motion to appoint Robert Henak a s counsel for the purposes of an evidentiary hearing (Docket #54) be and the same is hereby DENIED as moot; and IT IS FURTHER ORDERED that Simmons's petition for a writ of habeas c o rp u s (Docket #1), be and the same is hereby DENIED and this case is hereby D IS M IS S E D on the merits. T h e Clerk is directed to enter judgment accordingly. D a te d at Milwaukee, W is c o n s in , this 27th day of March, 2009. BY THE COURT:
J .P . Stadtmueller U .S . District Judge
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