Groenke v. Thurmer

FRANKIE GROENKE, Petitioner,

v.MICHAEL THURMER, Respondent.

Case No. 09-CV-0824

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

Dated: February 10, 2012

DECISION AND ORDER ON PETITIONER'S PETITION

FOR A WRIT OF HABEAS CORPUS

On August 26, 2009, the petitioner, Frankie Groenke, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 1998 judgment of conviction in Waukesha County Circuit Court case no. 95CF738. He pled no contest to two charges of armed robbery by use of a dangerous weapon, party to a crime and intimidation of a victim, party to a crime. On July 2, 1998, the petitioner was sentence to consecutive twenty-five-year terms on counts one and two and concurrent five-year terms on counts three and four for a total sentence of fifty years. This sentence was concurrent to a previous seventy-year aggregate sentence which he received in Milwaukee County Circuit Court case no. 94CF4928 for one count of armed burglary and two counts of armed robbery. The judgment of conviction in case no. 95CF738 was entered on July 7, 1998.

The petitioner challenges his conviction on the ground of ineffective assistance of counsel. The petitioner asserts that he was denied effective assistance of trial counsel because counsel failed to file a motion to suppress evidence obtained in violation of his FourthAmendment rights. He also asserts that he was denied effective assistance of trial and postconviction counsel because counsel failed to "obtain and review police reports in 'other acts' case that gives the defendant [sic] a 'description alibi' that shows the defendant [sic] is actually innocent . . . The 'other act' evidence was the 'only reason,' as stated on the record, that the Defendant [sic] took a plea, which now shows he is innocent." (Petition for a Writ of Habeas Corpus [Petition] at 7).

The court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 because the matter arises under federal statutes. Venue is proper under 28 U.S.C. §1391. The case was assigned according to the random assignment of civil cases pursuant to 28 U.S.C. § 636(b)(1)(B) and General Local Rule 72(a) (E.D. Wis.). The parties have consented to United States magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c) and General Local Rule 73 (E.D. Wis.).

APPLICABLE LAW

The habeas corpus statute was amended by the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub.L. No. 104-132, 100 Stat. 1214 (1996) which provides in pertinent part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) 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

(2) resulted in a decision that 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). This provision entitles federal courts acting within their jurisdiction to interpret the law independently, but requires them to refrain from "fine tuning" state court interpretations. Lindh v. Murphy, 96 F.3d 856, 870-77 (7th Cir. 1996), rev'd on other grounds, 521 U.S. 320 (1997). "Thus, although this court reviews the state court's legal conclusions and mixed questions of law and fact de novo, that review is 'tempered by AEDPA's deferential constraints.'" Hereford v. McCaughtry, 101 F. Supp. 2d 742, 746 (E.D. Wis. 2000) (quoting Sanchez v. Gilmore, 189 F.3d 619, 623 (7th Cir. 1999)).

A state court's decision is "contrary to . . . clearly established Federal law as established by the United States Supreme Court" if it is "substantially different from relevant [Supreme Court] precedent." Washington v. Smith, 219 F.3d 620, 628 (7th Cir. 2000) (quoting Williams v. Taylor, 529 U.S. 362, 404-05 (2000)). The court of appeals for this circuit recognized the narrow application of the "contrary to" clause:

under the "contrary to" clause of § 2254(d)(1), [a court] could grant a writ of habeas corpus . . . where the state court applied a rule that contradicts the governing law as expounded in Supreme Court cases or where the state court confronts facts materially indistinguishable from a Supreme Court case and nevertheless arrives at a different result.

Washington, 219 F.3d at 628. The court went on to explain that the "unreasonable application of" clause was broader and "allows a federal habeas court to grant habeas relief whenever the state court 'unreasonably applied [a clearly established] principle to the facts of the prisoner's case.'" Id. (quoting Williams, 529 U.S. at 413).

To be unreasonable, a state court ruling must be more than simply "erroneous" and perhaps more than "clearly erroneous." Hennon v. Cooper, 109 F.3d 330, 334 (7th Cir. 1997). Under the "unreasonableness" standard, a state court's decision will stand "if it is one of several equally plausible outcomes." Hall v. Washington, 106 F.3d 742, 748-49 (7th Cir. 1997).

In Morgan v. Krenke, the court explained that:

[u]nreasonableness is judged by an objective standard and under the "unreasonable application" clause, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable."

232 F.3d 562, 565-66 (7th Cir. 2000) (quoting Williams, 529 U.S. at 410-11). Therefore, before a court may issue a writ of habeas corpus, it must determine that the state court decision was both incorrect and unreasonable. Washington, 219 F.3d at 628.

RELEVANT FACTUAL BACKGROUND

The petitioner was charged in Waukesha County Circuit Court with the following crimes: (1) two counts of armed robbery in violation of Wis. Stat. § 943.32(2); and (2) two counts of intimidation of a victim in violation of Wis. Stat. § 940.45(3). The charges arose out of the search of the petitioner's residence which was conducted after the police executed an arrest warrant for the petitioner's roommate for an unrelated burglary. The police also had a search warrant for the roommate's car, as well as a list describing items taken in the burglary.

When the police arrived at the petitioner's residence, they asked his mother for consent to search the home. She signed a form giving her consent to search for "'[any] stolen stereo equipt. or contraband.'" (Answer to Petition for Writ of Habeas Corpus [Answer], Exh. E at 3). Police found and seized a wide variety of items, including "'pagers, radar detectors, jewelry, ammunition, compact discs, cassette tapes, hand tools, videotapes, CD players, telephones, headphones, handgun, knives, a Sega game system, a Nintendo game system, game cartridges, TVs, VCRs, stereo receivers, and stereo speakers." Id. The petitioner subsequently was charged with the aforementioned crimes. He pled no contest to the charges.

On February 16, 1997, the petitioner moved to withdraw his guilty plea in circuit court. On April 21, 1998, following a hearing on the motion, the circuit court denied the request. The petitioner filed a direct appeal from his judgment of conviction and the decision denying postconviction relief to the Wisconsin Court of Appeals. On appeal, the petitioner asserted that he should have been permitted to withdraw his guilty plea due to "ineffective assistance of trial counsel for failing to file a motion to suppress the results of an illegal search and seizure." Id.

On June 7, 2000, the Wisconsin Court of Appeals affirmed both the judgment of conviction and the order denying postconviction relief. Id. The court reasoned:

Groenke contends that he was entitled to an evidentiary hearing on his motion seeking a Machner hearing for trial counsel's failure to move to suppress evidence. We disagree. A court may, in its discretion, deny a hearing on a postconviction motion if the defendant fails to allege sufficient facts in his or her motion to raise a question of fact, or if the record conclusively demonstrates that the defendant is not entitled to relief. See State v. Bentley, 201 Wis. 2d 303, 309-10 (1996). Here, the circuit court made that determination, and we cannot say that it erroneously exercised its discretion in doing so.

As the circuit court made clear in its memorandum decision, the legality of the search had been determined in the evidentiary hearing held on Groenke's prior motion to withdraw his plea because of ineffective assistance of counsel. There, the court concluded that Groenke's mother voluntarily consented to the search. Groenke's later motion raises no new question of fact; this is a determination we make de novo. See id. at 310. Where such is true, the circuit court has the discretion to deny a postconviction motion without a hearing. See id. at 310-11. We cannot say that it erroneously exercised its discretion in doing so.

. . .

Given the nature of the crime that prompted the search, we conclude that the seized items, although not all stereo equipment, nevertheless clearly qualified as contraband and, therefore, were within the scope of the consent given. Contraband is not limited to items which are per se illegal: it also encompasses items which are acquired illicitly. See Jones v. State, 226 Wis. 2d 565, 593-95 (1999).

(Answer, Exh. E at 2-3). The petitioner filed a petition for review with the Wisconsin Supreme Court, which was denied on May 21, 2002. (Answer, Exh. G)

Subsequently, the petitioner filed several motions for post-conviction relief. On July 18, 2002, he filed a motion pursuant to Wis. Stat. § 974.06, claiming "ineffective assistance of trial and post-conviction counsel for failing to properly argue the identification suppression motion, for failing to file a motion...