Schmidt v. Hepp

DANIEL LEE SCHMIDT, Petitioner, v. RANDALL HEPP,¹ Respondent.

Case No. 18-cv-29-pp

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

January 5, 2021

ORDER OVERRULING OBJECTIONS (DKT. NO. 26), ADOPTING JUDGE DUFFIN'S REPORT AND RECOMMENDATION (DKT. NO. 12), DENYING MOTION TO OBTAIN APPOINTED COUNSEL (DKT. NO. 27), DENYING HABEAS PETITION (DKT. NO. 1) AND DISMISSING CASE

On January 5, 2018, the petitioner, an inmate at Waupun Correctional Institution who is representing himself, filed a petition for writ of habeas corpus under 28 U.S.C. §2254 challenging his 2014 conviction in Oconto County Circuit Court for two counts of first-degree intentional homicide. Dkt. No. 1; see also State v. Schmidt, Case No. 12CF000156 (Oconto County Circuit Court) (available at https://wcca.wicourts.gov). The clerk's office assigned the case to Magistrate Judge William Duffin. Dkt. No. 2. On August 26, 2019, Judge Duffin issued a report recommending that this court deny the petition. Dkt. No.12. The petitioner filed objections on February 17, 2020. Dkt. No. 26. On June 22, 2020, the petitioner filed a motion asking the court to appoint him an attorney. Dkt. No. 27. The court will overrule the petitioner's objections, adopt Judge Duffin's report and recommendation, deny the motion asking for the appointment of an attorney, deny the petition and dismiss the case.

I. Background

A. Facts

The petitioner does not object to the factual recitations in Judge Duffin's report, and this court adopts them.

On the morning of May 19, 2009, Holly Kleczka arrived at the home of her friend, Kimberly Rose, in the rural town of Gillette, Wisconsin. She knocked but received no answer. The friends had spoken within the hour and Rose had told Kleczka she would leave the door unlocked; if she did not answer, Kleczka should just come in. Kleczka entered through the unlocked door, sat her two children on the couch, and turned the television on for them before continuing through the home, calling for her friend. Kleczka pushed open the partially closed door to Rose's bedroom and there found Rose, sitting on the floor against the wall, covered in blood, dead.

Kleczka ran from the home, locked her children in her car, and called 911. Paramedics arrived, followed shortly thereafter by a police officer. After seeing Rose, the police officer told the paramedics to leave the home with him. It was only when other law enforcement officers arrived that they checked to see if anyone else was in the home. In doing so, they entered another bedroom and found a man lying on a mattress and covered with a blanket, seemingly asleep. The man did not respond to the officers' commands, and only after an officer removed the blanket did the officers recognize a hole in his back. Leonard Marsh, Rose's brother, was also dead. Rose had been shot once and Marsh three times, all with a 20-gauge shotgun.

Investigators learned that Rose had talked to her mother from 10:12 to 10:19 AM that morning. When Rose's mom called back at 10:47 AM, there was no answer. Kleczka found Rose shortly thereafter. Because there were no signs of forced entry and it did not appearanything was missing from the home, investigators suspected that they were murdered by someone who knew at least one of them.

Investigation into Rose's ex-boyfriend revealed he was over two hours away at the time of the murders. And Marsh's boyfriend, with whom Marsh had recently gotten into a fight, was also over two hours away. The investigation then turned to [the petitioner], with whom Rose had been having an affair.

[The petitioner's] wife, Stephanie, had recently found out about the affair. In an argument about the affair on May 15, four days before the murders, [the petitioner] told his wife, "I'd like to shoot her, then myself." (ECF No. 10-13 at 199.) Although [the petitioner] and Stephanie agreed to continue with their marriage despite the affair, Stephanie felt Rose was making it difficult. For example, Rose told Stephanie upsetting details of the affair, including that she and [the petitioner] had had sex in [the petitioner's] home and in Stephanie's car. On hearing that they had had sex in her car, on May 17, 2009, Stephanie drove to the farm where [the petitioner] worked and angrily confronted him, taking off her wedding ring and throwing it at him.

Also on May 17, 2009, Rose sent Stephanie a text message with words to the effect of "pay back is a bitch," attached to which was a photograph. Stephanie was unable to view the photograph on her phone but understood it was an image of [the petitioner] and Rose. Upon learning that Rose kept a journal that included details of her affair with [the petitioner], Stephanie demanded to see it. Stephanie arranged to get the journal from Rose on May 21. No such journal was found in Rose's home after her death.

Rose had also loaned [the petitioner] $1,000 for a motorcycle. The loan created tension between [the petitioner] and Stephanie because it required [the petitioner] to continue to have contact with Rose. Moreover, Stephanie had just lost her job, straining [their] ability to repay the loan. In light of [their] financial circumstances, Rose had agreed to accept an installment payment in the form of marijuana, which [the petitioner] grew in his garage. But Rose was dissatisfied with the quality and quantity of the marijuana and was demanding to be fully compensated.

The night before the murders, on May 18, 2009, Rose's 11-year-old son awoke at about 11:00 PM. He saw a man and a woman sitting on the couch in his home, arguing with his mother about money and marijuana. Although he was familiar with [the petitioner] and Stephanie, he could not see the faces of these visitors. Rose's sonwent back to his room and looked outside. He saw a green and silver pickup truck in the driveway, which is consistent with the truck that [the petitioner] drove. However, Rose's son's recollection of this night varied over time. For example, at a preliminary hearing he testified that he could not see the color of the truck. Stephanie denied that she went to Rose's home that night.

Around this same time—roughly 11:00 PM on May 18, 2009—Marsh called a friend, asking her to pick him up from Rose's house. Marsh was very upset and crying. Marsh told his friend that a man and woman whom he did not like were at his house, and he wanted to leave. His friend could hear a woman telling Rose to "shut up" and heard some discussion about money. Marsh told his friend their names, but she could not recall them other than that the man's name was short and the woman's name was long. A few hours later, around 1:00 AM on the morning of May 19, Rose called Marsh's twin brother, asking him to pick up Marsh because she and Marsh were fighting. He refused, saying it was too late and too far of a drive.

On May 19, [the petitioner] got home from work as he usually did between 9:15 and 9:30 AM, and soon told Stephanie he was going to pick up their daughter from preschool. This struck Stephanie as odd because it was only 9:30 and their daughter did not need to be picked up until 11:00 AM. Nonetheless, [the petitioner] left, alone, and returned home at about 10:30 or 10:35, telling his wife he went for a drive to clear his mind. Uncharacteristically, when he returned he parked the car in the garage. A neighbor of [the petitioner and Stephanie] testified he saw [the petitioner] arrive home at 10:37 and park in the garage. [The petitioner] then left again at about 10:40 or 10:45, this time taking his pickup truck and the couple's young son to get their daughter from preschool. The drive from [the petitioner's] home to Rose's home would be about 21 minutes each way if the driver drove the speed limit and came to a complete stop at all stop signs.

Later, [the petitioner] told Stephanie that on his drive he went to a friend in a nearby town. He told her the route he took, and Stephanie went to businesses along the route to see if any surveillance camera might have captured images of his car. After a business reported to her that it reviewed its security footage but did not see the car, [the petitioner] told Stephanie that maybe he took a different route to his friend's house. He told investigators that he started to drive to a friend's house but realized he did not have enough time to make it back in time to get his daughter from preschool, and so turned around and went home.

[The petitioner] had owned a 20-gauge shotgun. When questioned by law enforcement, he lied and said he had sold the gun years ago. [The petitioner] actually gave his 20-gauge shotgun to a friend the day after the murders, and the friend destroyed it.

[The petitioner] was not charged until September of 2012, over three years later. Beginning on October 11, 2013, the state presented its circumstantial case against [the petitioner] to a jury.

Dkt. No. 12 at 1-6.

The petition explained that on direct appeal, the petitioner had argued that (1) insufficient evidence supported his conviction, (2) the circuit court erroneously found that he waived his right to marital privilege and (3) the circuit court "erroneously and unconstitutionally excluded expert witness testimony." Dkt. No. 1 at 3. The petition indicated that after the Wisconsin Court of Appeals affirmed the convictions, the petitioner sought review of the same issues in the Wisconsin Supreme Court. Id. The petitioner stated that he filed a postconviction motion for a new trial in the Oconto County Circuit Court, that the court denied the motion in February of 2015 and that he did not appeal that denial through the Wisconsin Supreme Court. Dkt. No. 1 at 4-5.

B. Petition (Dkt. No. 1)

The petition asserts three grounds for relief: (1) the circuit court denied the petitioner his right to present a defense when it "refused to let him present testimony from a child psychologist regarding child memory," (2) the circuit court erred when it found that the petitioner waived a spousal privilege and (3) insufficiency of...