Orton v. Hepp

GERALD O. ORTON, Petitioner, v. RANDALL R. HEPP,Warden, Fox Lake Correctional Institution, Respondent.

17-cv-171-wmc

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

May 28, 2020

OPINION AND ORDER

Pursuant to 28 U.S.C. § 2254, Gerald Orton, a state prisoner presently confined at the Fox Lake Correctional Institution, seeks federal habeas relief from his 2011 conviction for attempted first-degree intentional homicide in the Circuit Court for Dane County, Wisconsin. Specifically, Orton claims that he is in state custody in violation of the United States Constitution because: (1) he received ineffective assistance of counsel in connection with his no-contest plea to the charge; (2) the plea was not entered knowingly, voluntarily, and intelligently; and (3) the trial court relied on inaccurate information at sentencing. Orton presented these same three claims to Wisconsin trial and appellate courts, all of which denied him relief, and his bid for federal relief will fare no better.

As explained in more detail below, the Wisconsin Court of Appeals -- the last state court to adjudicate these claims on the merits -- did not unreasonably apply federal constitutional law or make any unreasonable determinations of fact in finding his plea valid. Although not adjudicated on the merits by the Wisconsin Court of Appeals, Orton's sentencing challenge is wholly without merit. Accordingly, federal habeas relief is not available to Orton under 28 U.S.C. § 2254(a) or (d).

UNDISPUTED FACTS¹

A. The Charges

On August 27, 2009, Orton was charged in Dane County Circuit Court with attempted first-degree intentional homicide, strangulation, and aggravated battery of his estranged wife. Although Orton disputed some of the circumstances, the underlying facts alleged were even more horrific than the charges themselves. According to the complaint, Orton entered his estranged wife's house on August 19, 2009, carrying a box containing wedding photos and a demolition mallet. His wife was in the middle of preparing a meal, and their two children, then aged 1 and 2, were in the kitchen area in their highchairs. Shortly after entering the home, Orton told her "tonight's the night you're going to die," then he proceeded to strangle her, slam her head repeatedly against the wall, and push her into a corner against the kitchen cabinets. The complaint further alleged that Orton grabbed the demolition mallet and struck his wife multiple times in the head, leaving her lying in a pool of blood. After leaving the house, Orton called 911, stating that he had just killed his wife and his children were at the house alone. Although she survived, his wife suffered serious injuries to her hand, skull, and face.

B. Trial Court Proceedings

On January 31, 2011, Orton entered a plea of no contest to attempted first-degree intentional homicide in exchange for the State's agreement to dismiss and read-in theaggravated battery and strangulation charges. The trial court began the plea colloquy with Orton by asking him if the plea agreement had been stated correctly on the record, which Orton confirmed. The court next asked and the defendant answered as follows:

Q: Have you had enough time to speak to your attorney about this?

A: I have.

Q: You know of course that this case was to have gone to trial, is scheduled for trial beginning one week from today and continuing for eight days?

A: Yes.

Q: And today by entering a plea you're giving up your right to have that trial, is that correct?

A: I am, your Honor.

(Tr. of Plea Hrg. (dkt. #8-9) 3.) In response to further questions about his age, years of schooling, and history of mental illness, Orton volunteered that he was 41 years old, had 12 years of schooling, and had been diagnosed in jail with bipolar disorder and ADHD. Orton also reported that he was taking an antidepressant, but expressly denied that this medication interfered with his ability to understand the proceedings or communicate effectively with his attorney. (Id. 4:6-12.)

The court then turned to Orton's understanding of the constitutional rights he was waiving by pleading no contest. As relevant here, the court again asked Orton: "Do you understand that by entering a plea to Count 1, you are giving up your right to have a trial?," and he replied, "I do." (Id. 4.) After further discussion of his rights at trial and the court's role, Orton was asked if he had any questions about what his plea meant, to whichOrton responded, "no." (Id. at 7.) Relying on the facts in the criminal complaint and Orton's examination at the plea hearing, the court found Orton's plea was factually supported and entered knowingly, intelligently and voluntarily.

Before sentencing, Orton provided the author of the presentence report a very different version of the facts surrounding his offense than appears in the criminal complaint. In particular, Orton had told the presentence report writer that the attack on his wife was not premeditated, but rather began as a mutual fight that spiraled out of control, with him grabbing her by the neck in response to her kick to his groin and her head striking the stove as they fell to the ground. He further said that his wife grabbed for the mallet first, and only then did he grab the mallet and strike her with it once. Orton also claimed that his children were not present during the altercation.

To refute that characterization, the State presented the following, three witnesses at sentencing:

Madison Detective Denise Armstrong, one of the first officers to respond to the 911 call, who testified about her observations at the scene, including how law enforcement officers found the children screaming in their highchairs, and her interview with the victim;

Howard Rowley, M.D., chief of neuroradiology at the University of Wisconsin Hospital, who testified that scans of the victim's head showed multiple sites of injuries, including scalp lacerations and swelling, skull fractures, bruising behind the eye, and bleeding inside the brain, which he opined were caused by direct trauma; and

Nick Stahlke, a blood stain pattern specialist from the Wisconsin State Crime Laboratory, who testified that blood stains on the refrigerator were consistent with high force contact to an already-bloody source.

[cite?] The State also presented photographs and diagrams of the scene, phone logs, and audio recordings of voicemail messages Orton left with friends immediately after the attack. In those messages, Orton said his wife made him "crazy," that he had beaten her with a hammer, and that he thought she was dead. The victim provided a statement as well, describing how Orton brutally attacked her and struck her with a mallet as her two young children screamed while looking on from their highchairs. Finally, several friends and family members of both Orton and the victim made statements.

Unsurprisingly, the sentencing court rejected Orton's description of the attack as set forth in the presentence report. The court found "no doubt" that the attack was a premeditated attempt to kill the victim, noting that the testimony of Dr. Rowley and Stahlke "convince me that this wasn't just one blow to the head triggered as a response to an attack by [the victim] on Mr. Orton. These were multiple blows." (Sentencing Tr. (dkt. #8-10) 180:14-19.) The court also found that Orton did not put the mallet into the box to hang photos on the wall, but brought it "for another purpose," and that a phone call chart presented by the State indicated Orton was not at the victim's home long enough for a domestic dispute to have escalated out of control. Describing the nature of the offense, the court found that the attack was "vicious and horribly brutal," as evidenced by: (1) Orton's strangling of the victim before hitting her with the mallet; (2) his statements to her during the attack; and (3) the fact that he called the victim's mother after the attack and told her he had just killed her daughter. The court explicitly found "incredible" Orton's suggestion that his wife rummaged for the mallet first.

Overall, the court found Orton's attempt to shift the blame to the victim showed alack of remorse. The court further found, among other things, that Orton's demeanor during pretrial proceedings was "not good," noting that he had caused multiple delays by repeatedly firing his attorneys. In the court's view, Orton's conduct during the pretrial proceedings was designed primarily to manipulate the court and the victim. Taking this and a variety of other sentencing factors into account, the court ultimately sentenced Orton to 30 years' imprisonment, consisting of 22 years of confinement to be followed by 8 years of extended supervision.

C. Postconviction Motions

On October 6, 2011, more than eight months after his sentencing, Orton filed a motion to withdraw his plea on grounds of ineffective assistance of counsel. In particular, Orton claimed that his attorney, Mark Frank, had told him that if he entered a no contest plea, he could withdraw it at any time before sentencing for any reason whatsoever and proceed to trial.

The trial court held an evidentiary hearing on the motion, at which both attorney Frank and Orton testified. (Tr. of Postconviction Mot. Hrg. (dkt. #8-11).) Before Orton entered his plea, Frank testified that they had very detailed discussions about the standards for plea withdrawal. Frank testified that he also explained to Orton the standards for withdrawing a plea both before and after sentencing, and told Orton in particular that it would require more than a "simple change of heart" to withdraw the plea even before sentencing. Frank specifically denied telling Orton that entering a plea of no contest was "no big deal." To the contrary, Frank was confident Orton understood that the entry of his plea was a "huge deal" because, after putting it off for as long as he could, Orton hadfinally concluded that entering a plea "was the only wise and proper action to take." (Id. 6:17-...