Garcia v. Foster

570 F.Supp.3d 659

Nelson GARCIA, Jr., Petitioner,

v.Brian FOSTER, Respondent.

Case No. 20-CV-336

United States District Court, E.D. Wisconsin.

Signed November 9, 2021

Pamela S. Moorshead, State Public Defenders Office, Milwaukee, WI, for Petitioner.

DECISION AND ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS

NANCY JOSEPH, United States Magistrate Judge

Petitioner Nelson Garcia, Jr. seeks federal relief under 28 U.S.C. § 2254 from his state court conviction for robbery of a financial institution. Garcia alleges that his Sixth Amendment rights were violated when he was placed in a post-arrest police lineup without the representation of counsel and when the trial judge denied him the right to represent himself at trial. For the reasons stated below, the petition for writ of habeas corpus is granted.

BACKGROUND

Garcia challenges his judgment of conviction for robbery of a financial institution in Milwaukee County Circuit Court Case No. 2012CF104. (Habeas Petition at 2, Docket # 1.) A man robbed a Milwaukee bank on December 27, 2011. (State v. Garcia , Appeal No. 2016AP1276 (Wis. Ct. App. Apr. 10, 2018), Ex. 6, Docket # 6-15.) The man gave the teller, D.L., a handwritten note informing her that this was a robbery and instructing her to put money into a bag he gave her. (Id. ¶ 2.) She did so, and he left the bank. (Id. ) A second teller observed the robbery from nearby, and the robbery was also caught on surveillance video. (Id. ) Following the release of the video to the media, police received several calls identifying the man in the video as Garcia. (Id. ¶ 3.) Garcia was arrested on January 2, 2012. (Id. ) Within 48 hours of his arrest, on January 4, 2012, a Milwaukee County Court Commissioner reviewed a form known as a "CR-215," titled "Probable Cause Statement and Judicial Determination." (Id. ¶ 4.) The form, prepared by police, contained a statement alleging that officers had received several calls identifying Garcia in the surveillance video; that the name led officers to find a booking photo of Garcia, which an officer also matched to the surveillance video; that the two people who lived in the house where Garcia was arrested told police they had known Garcia for years and identified Garcia as the man in the surveillance video; and that Garcia's girlfriend also told police that Garcia was the man in the surveillance video. (Id. ) The statement was signed by a detective and the court commissioner stated that he found probable cause to believe Garcia committed the offense and set bail at $50,000.00. (Id. )

Several hours after Garcia's bail was set, police conducted an in-person lineup with the two tellers. (Id. ¶ 5.) After viewing the lineup twice, D.L. positively identified Garcia as the robber, while the other teller said that she was not positive. (Id. ) Garcia made his initial appearance on January 7, 2012. (Id. ¶ 7.) The attorney who appeared with Garcia at the preliminary hearing ten days later was the first of six attorneys to represent Garcia over the next three years and six months, during which time the case continued through three judicial rotations. (Id. ¶¶ 8–9.) Garcia filed a motion to proceed pro se in May 2015. (Id. ¶ 16.) The motion was heard at the final pretrial hearing on June 29, 2015, two weeks before the July 13, 2015 start of trial. (Transcript of June 29, 2015 Final Pretrial Conference, Answer, Ex. 38, Docket # 6-38.) The trial court conducted a lengthy colloquy with Garcia in which the court confirmed that Garcia understood both his rights to counsel and to represent himself; that he understood the charges against him; that he was 37 years old, completed some college, was able to read and write in English, and regularly read case law and religious materials; that he wrote his motion to proceed pro se himself; that he suffered from no medical or emotional problems; that he was not pressured or under the influence of drugs, alcohol, or medications; and that he understood that a lawyer would know more about the law and court proceedings than him. (Id. at 8–12.)

The trial court asked Garcia whether he wanted to give up his right to an attorney and exercise his right to represent himself, to which Garcia responded, "Yes, I do." (Id. at 13.) The prosecutor then expressed concern over whether Garcia would act appropriately in front of the jury because Garcia had made a number of lengthy statements in prior hearings, to which the court responded that he would have Garcia's current counsel serve as standby counsel and stated that "anyone who is a regular in this courtroom knows that I certainly have no problem with cutting people off if they are acting inappropriately or arguing beyond what the law calls for." (Id. at 13–14.)

The trial court then stated that although he believed Garcia was making a mistake, "I don't see anything in the written materials or the colloquy that would indicate that he is not competent to make this decision. While it may be a bad decision. This is, indeed, what he wants." (Id. at 16.) The court's next exchange with Garcia underpins the issue under habeas review:

THE COURT: But I am inclined, if this is, indeed, what you want, would be to allow you to represent yourself, and I would appoint Mr. Bihler from this point on on behalf of the County at forty dollars an hour as standby counsel in this case. Is that, indeed, what you want?

THE DEFENDANT: Well, Your Honor, I have prepared a statement.

THE COURT: Well, I don't need your statement. It's a simple question. And this highlights what Ms. Kronforst indicated; and that is, you're going to follow the same rules that the attorneys follow in my courtroom. And when I ask you questions that involves a yes or no answer, that's what I expect. I have indicated to you that under these circumstances, I am inclined to grant your request, because I don't think under the law, I have any choice under this set of facts. But I don't think it's a wise decision. But if it's what you want, I will do this. So, do you want me to allow you to proceed pro se as indicated, yes or no?

THE DEFENDANT: Yes.

THE COURT: All right. Well. The defendant appears to have knowingly and voluntarily waived his right to counsel based on the record before this Court. It appears that the defendant is making a deliberate choice. He is aware of the difficulties and disadvantages of proceeding without a lawyer. And he is aware of the seriousness of the charges and what could happen to him if convicted. I think actually I may have misspoke on the penalty. It's actually forty (40) years. And it's twenty-five (25) in and fifteen (15) out and a maximum fine of one hundred thousand dollars ($100,000.00). Do you understand that, Mr. Garcia?

THE DEFENDANT: Yes.

THE COURT: All right. And does that change your decision in any way?

THE DEFENDANT: There are several things that you are incorrect about.

THE COURT: Yes or no? Does that change your decision in any way?

THE DEFENDANT: Well, it changes my decision with regards to Attorney Bihler being the standby counsel. I never requested him to be my standby counsel.

THE COURT: Well, he's the one you are going to get. Do you want to represent yourself with Mr. Bihler as standby counsel, or do you want Mr. Bihler to continue as counsel for you? Those are your two choices. Pick one.

THE DEFENDANT: If I understand, correctly, Your Honor –

THE COURT: Stop. Your choices are to represent yourself, or you can have Mr. Bihler represent you. If you decide to represent yourself, then Mr. Bihler will serve as your standby –

THE DEFENDANT: You are not allowing me to speak, Your Honor.

THE COURT: You don't get to. Well, this has convinced me right here that there is something going on with Mr. Garcia. Under these circumstances, I can't believe that because this would make a mockery out of the system. He won't answer the Court's questions. I don't know how we could proceed with him as counsel. So, I think that now, Mr. Garcia, himself, has made a sort of record that would, perhaps, require me to deny his request.

(Id. at 17–20.) The trial court further noted for the record that Garcia's demeanor had been "argumentative" and that the deputy "actually got up from his chair. He was standing next to him." (Id. at 21.) Thus, the trial court denied Garcia's motion "based on Mr. Garcia's behavior." (Id. at 22.) Garcia proceeded to trial represented by Attorney Bihler and the jury convicted him. (Docket # 6-15 at ¶ 19.)

Garcia appealed his judgment of conviction, arguing, as relevant here, that he was denied his Sixth Amendment right to counsel during the post-arrest lineup and was denied his Sixth Amendment right to represent himself at trial. (Id. ¶¶ 20–31, 43–49.) The court of appeals rejected both arguments and affirmed the judgment of conviction. (Id. ¶ 50.) Garcia petitioned the Wisconsin Supreme Court for review and the petition was granted (Order Granting Petition for Review, Answer, Ex. 18, Docket # 6-18); however, following briefing and oral argument, an equally divided court summarily affirmed the Wisconsin Court of Appeals’ decision in a per curiam opinion, ( State v. Garcia , 386 Wis.2d 386, 925 N.W.2d 528 (2019), Ex. 22, Docket # 6-22). Garcia timely filed a petition for a writ of habeas corpus in this Court on March 3, 2020. (Docket # 1.)

STANDARD OF REVIEW

Garcia's petition is governed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). Under AEDPA, a writ of habeas corpus may be granted if the state court decision on the merits of the petitioner's claim (1) was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1) ; 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)(2).

A state court's decision is "contrary to ... clearly established Federal law as established by the United States Supreme Court" if it is "substantially...