Chisem v. Radtke

         UNITED STATES DISTRICT COURT                               
         EASTERN DISTRICT OF WISCONSIN                              

JARMEL DONTRA CHISEM,                                               

               Petitioner,                                          
                                      Case No. 20-CV-674-JPS-JPS    
v.                                                                  



DYLON RADTKE,                                                       
                                              ORDER                 

               Respondent.                                          

1.   INTRODUCTION                                                    
    On April 30, 2020, Petitioner Jarmel Dontra Chisem (“Chisem”) filed 
a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 
1. In 2015, Chisem was convicted by a jury in Milwaukee County Circuit 
Court of: (1) first-degree reckless homicide as a party to a crime while using 
a  dangerous  weapon,  as  a  repeater;  and  (2)  first-degree  reckless 
endangerment of safety as a party to a crime while using a dangerous 
weapon, as a repeater. State v. Chisem, 927 N.W.2d 920 (Table), 2019 WL 
1035482, at *1, *3 (Wis. Ct. App. Mar. 5, 2019).1 Thereafter, Chisem was 
sentenced to “a total of forty-seven years, bifurcated as thirty-three years of 
initial confinement and fourteen years of extended supervision.” Id. at *3. 
Chisem filed a Wis. Stat. § 974.02 post-conviction motion for a new trial 
pursuant to Wis. Stat. § 809.30, which the circuit court denied. Id. at *1. 
Chisem appealed from the order denying his motion for post-conviction 

    1The majority of the facts in this Order derive from the Wisconsin Court of 
Appeals’ recitation. Chisem’s Milwaukee County Circuit Court case is State v. 
Chisem, 2014CF003715 (Milwaukee Cnty. Circ. Ct. Aug. 24, 2014), available at 
https://wcca.wicourts.gov/ (last visited Nov. 28, 2022).             
relief as well as his judgment of conviction. Id. The Wisconsin Court of 
Appeals affirmed Chisem’s judgment of conviction as well as the denial of 
his post-conviction motion. Id. at *7. The Wisconsin Supreme Court denied 
Chisem’s petition for review. State v. Chisem, 933 N.W.2d 21 (Table) (Wis. 
2019).                                                               
    Chisem then filed his Section 2254 petition. ECF No. 1. On May 13, 
2020,  Magistrate  Judge  William  E.  Duffin  issued  a  Report  and 
Recommendation (“R&R”) in which he recommended dismissing Chisem’s   
habeas petition because two of his five grounds for habeas relief were not 
exhausted. ECF No. 4; 28 U.S.C. § 2254(b)(1)(a). Specifically, Chisem had 
not exhausted his claims that: (1) appellate counsel was ineffective for 
failing to challenge trial counsel’s failure to compel an alibi witness to 
testify; and (2) appellate counsel was ineffective for failing to challenge the 
sufficiency of the evidence. ECF No. 1 at 1, 12. Chisem acknowledged that 
these claims were not exhausted in his federal habeas petition and sought a 
stay so that he could finish the exhaustion process. Id. at 12.      
    In recommending dismissal, Magistrate Judge Duffin explained that 
Chisem’s one-year deadline in which to file a habeas petition would not 
expire until October 8, 2020. ECF No. 4 at 2. Magistrate Judge Duffin 
recommended dismissing the petition entirely because, if Chisem wished 
to exhaust his remaining claims, he had “plenty of time in which to properly 
file ‘an application for State post-conviction or other collateral review with 
respect  to  the  pertinent  judgment  or  claim’  in  state  court.”  Id.  at  2–3 
(quoting 28 U.S.C. § 2244(d)(2)). Magistrate Judge Duffin explained that 
once  Chisem  filed  his  post-conviction  motion,  the  one-year  statute  of 
limitations on federal habeas claims would be tolled. Id. Chisem timely 
objected  to  the  R&R  and  sought  a  stay,  but  the  Court  overruled  the 
objections, finding there was no good cause for Chisem’s failure to exhaust 
and declining to issue a stay and abeyance. ECF No. 8. In lieu of outright 
dismissing the case, the Court gave Chisem a choice between: (1) dismissing 
the petition entirely so he could pursue his unexhausted claims in state 
court; or (2) proceeding only on the exhausted claims. Id. at 4.     
    Chisem filed a motion to reconsider, explaining that, in the time 
between Magistrate Judge Duffin’s R&R and the Court’s order adopting the 
R&R, he had filed a post-conviction motion pursuant to Wis. Stat. § 974.06, 
thus taking a step toward exhausting his unexhausted claims. ECF Nos. 9, 
10. On January 12, 2022, the Court denied the motion for reconsideration, 
in part because Chisem’s Wis. Stat. § 974.06 motion was filed late and 
“narrowly failed to toll the one-year statute of limitations,” which tolling 
Magistrate Judge Duffin had explained in his screening order. ECF No. 13. 
In the interim, Chisem had additionally filed a letter with the Court stating 
that he “will be proceeding only on [the] exhausted grounds.” Id. at 3 
(quoting ECF No. 10). Given “the lack of good cause to permit the stay and 
abeyance,” as the Court had explained in its prior order, “as well as the 
lapse of the statute of limitations,” coupled with Chisem’s letter, the Court 
permitted  Chisem  to  proceed  on  his  three  exhausted  claims  from  his 
amended petition: (1) that his trial should have been severed from that of 
his  codefendant;  (2)  that  his  confrontation  right  was  violated  by  the 
admission of his codefendant’s statements; and (3) that the trial court 
improperly permitted a witness to testify. Id. at 3–4. The Court ordered a 
briefing schedule at that time. Id. at 4–5.                          
    On January 27, 2022, Chisem filed a motion to waive unexhausted 
claims and to proceed with exhausted claims. ECF No. 16. On January 31, 
2022, Respondent Dylon Radtke (“Respondent”) filed a response to the 
amended petition in accordance with the briefing schedule. ECF No. 17. On 
March 10, 2022, and on March 25, 2022, Chisem filed two separate motions 
for an extension of time to file his brief in support of the amended petition. 
ECF Nos. 18, 19. Chisem filed his brief in support of the amended petition 
on April 8, 2022, which was eight days past the date set in the briefing 
schedule. ECF No. 20. On August 12, 2022, the Court denied Chisem’s  
motion to waive unexhausted claims and to proceed on the three exhausted 
claims as moot, finding that “[t]he Court’s January 12, 2022 order detailed 
this specific outcome and therefore [Chisem’s] request is moot.” ECF No. 
28  at  3.  The  Court  further  retroactively  granted  Chisem’s  motions  for 
extensions of time and accepted his April 8, 2022 brief as timely filed. Id. 
    Thereafter, Chisem refiled his brief on September 13, 2022, perhaps 
understanding the Court’s August 12, 2022 order as instructing him to refile 
the brief. ECF No. 29. Respondent moved to strike the refiled brief, which 
Chisem  opposed  on  the  grounds  that  the  Court  had  granted  him  an 
extension of time to file his brief. ECF No. 31. Chisem is correct that the 
Court granted him an extension of time to file his brief, but in so doing, the 
Court accepted his late-filed April 8, 2022 brief; it did not order him to refile 
the brief. Thus, the Court will consider in this Order the parties’ fully 
briefed positions as laid out in: (1) Chisem’s April 8, 2022 brief in support, 
ECF No. 20; (2) Respondent’s June 3, 2022 brief in opposition, ECF No. 21; 
and (3) Chisem’s July 5, 2022 brief in reply, ECF No. 23. Consequently, the 
Court will deny as moot Respondent’s motion to strike, ECF No. 30.   
    Separately,  on  July  13,  2022,  Chisem  filed  a  motion  to  appoint 
counsel and for an evidentiary hearing, ECF No. 24, which Respondent 
opposed on July 19, 2022, ECF No. 25. That motion and the amended merits 
petition are now before the Court. For the reasons explained below, the 
Court finds that Chisem’s amended petition is without merit and, therefore, 
will deny it. The Court will further deny Chisem’s motion to appoint 
counsel and Chisem’s motion for evidentiary hearing. ECF No. 24.     
2.   BACKGROUND                                                      
    Chisem’s charges and conviction stem from a shooting that occurred 
on June 6, 2014. Chisem, 2019 WL 1035482, at *1. Raymond Harris (“Harris”) 
was found lying face down in a pool of blood with multiple gunshot   
wounds and was pronounced dead at the scene. Id. Another individual, 
J.W., had been shot in the abdomen but survived. Id.                 
    While investigating the shooting, detectives reviewed surveillance 
footage and discovered that the shots were fired from a silver Saturn SUV. 
Id. at *2. Detectives spoke with a witness, Fabian Edmond (“Edmond”), 
whose vehicle was also seen in the footage. Id. Edmond identified the silver 
Saturn as having been driven by Chisem earlier on the day of the shooting 
with Chisem’s co-defendant Howard Davis (“Davis”) in the passenger seat. 
Id. Edmond also stated that he heard the shots and that they had come from 
the silver Saturn. Id. Finally, Edmond said that the day after the shooting, 
Chisem  and  Davis  came  to  his  place  of  employment  and  that  Davis 
instructed  Edmond  to  say  he  did  not  know  anything  if  the  police 
questioned him about the shooting. Id. at *2, *4.                    
    Detectives  also  spoke  with  another  witness,  Earnest  Davis 
(“Earnest”), who was with Edmond at the time of the shooting. Id. at *2. 
Earnest stated that he had seen Chisem driving the silver Saturn the day 
before the shooting. Id. He further informed detectives that he saw shots 
being fired from that vehicle. Id. Finally, he told police that he saw Howard 
Davis2  and  Chisem  shortly  after  the  shooting.  Id.  Howard  Davis  was 
sweating and threw his shirt into the garbage. Id. Chisem told Earnest not 
to speak about the incident. Id. Harris’s sister, Deion Smith (“Smith”), 
additionally  told  detectives  that  Harris  told  her  that  Harris  had  shot 
Howard Davis in the summer of 2013. Id.; ECF No. 17-2 at 24.         
    Police later located the silver Saturn, which belonged to Chisem’s 
girlfriend. Chisem, 2019 WL 1035482, at *2. Chisem and Davis were arrested 
and  charged.  Id.  While  Chisem  and  Davis  were  in  jail  awaiting  trial, 
detectives received information from Jamil Tubbs (“Tubbs”), an inmate 
incarcerated with Chisem and Davis. Id. Tubbs stated that he overheard 
Chisem and Davis talking and laughing about the shooting. Id. Tubbs also 
said that he heard Davis tell Chisem that Chisem “should have put the truck 
in the garage to hide it” and that he heard Davis state that he (Davis) had 
shot J.W. Id. Another inmate incarcerated with Chisem and Davis, Willie 
Nelson (“Nelson”), told police that he had several conversations with Davis 
regarding the shooting. Id. Specifically, Nelson informed police that Davis 
told him that Davis “had been jumped and been shot” previously by Harris, 
which  was  Davis’s  “motive  for  shooting  Harris.”  Id.  at  *2,  *4.  Police 
subsequently searched Davis’s cell and discovered rap lyrics written by 
Davis about the shooting. Id. at *2.                                 
    Following these events and prior to trial, Chisem moved to sever his 
trial from Davis’s. Id. Chisem argued that “certain evidence relating solely 
to Davis—his inculpatory statements to Tubbs and Nelson relating to the 

    2To avoid confusion, as co-defendant Howard Davis and unrelated witness 
Earnest Davis have the same last name, the Court refers to Earnest Davis as 
“Earnest” and reinstates Howard Davis’s full name in this paragraph. All other 
references in this Order to “Davis” refer to co-defendant Howard Davis.  
shooting of Harris and his motive for the shooting, as well as the rap lyrics 
discovered in his cell—would be prejudicial to Chisem.” Id. The State 
opposed severance, arguing that “introducing evidence to be used against 
only one codefendant is not a ‘unique situation’ mandating severance.” Id. 
The State further noted that “antagonistic defenses had not been asserted, 
and  that  the  jury  could  be  properly  instructed  to  consider  the  crimes 
charged against each defendant and the evidence as it pertains to each 
defendant separately and distinctly.” Id. The trial court agreed and denied 
Chisem’s motion. Id.                                                 
    The case proceeded to trial in March 2015. At trial, the State called 
witnesses J.W.; Edmond; Earnest; Smith; Tubbs; Nelson; Khijuan Parker 
(“Parker”), who was with J.W. when he was shot, saw the silver Saturn at 
the scene, and saw shots come from the area where the silver Saturn was 
parked; Detective Matthew Bell (“Bell”), who testified about the statement 
he received from Tubbs; and Detective Timothy Graham (“Graham”) who  
testified that Nelson’s statement implicated Chisem as well as Davis in the 
shooting, including an explanation as to losing a recording device he had 
been using when he spoke with Nelson and received the statement from 
Nelson. Id. The jury found Chisem guilty of first-degree reckless homicide 
as a party to a crime while using a dangerous weapon, as a repeater, and 
first-degree reckless endangerment of safety as a party to a crime while 
using a dangerous weapon, as a repeater. Id. at *3. The jury found Chisem 
not guilty of possession of a firearm. Id. Chisem was sentenced to a total 
term of 47 years, bifurcated as 33 years of initial confinement and 14 years 
of extended supervision. Id.                                         
    Chisem filed a post-conviction motion requesting a new trial. Id. 
Therein, he argued that the trial court erred in denying his motion for 
severance,  “based  on  the  premise  that  his  right  to  confrontation  was 
violated because certain out-of-court statements by Davis were admitted 
and used as evidence against Chisem, but he was unable to cross-examine 
Davis regarding those statements since Davis did not testify.” Id. The 
specific statements as to which Chisem challenged admissibility were made 
by Davis to the following individuals “regarding the shooting of Harris, as 
well as [Davis’s] motive for the shooting”:                          
    •  Edmond, who testified that the day after the shooting both   
      Chisem and Davis came to his workplace, where Davis           
      instructed  Edmond  not  to  say  anything  about  the        
      shooting;                                                     
    •  Tubbs, who testified that while incarcerated with Chisem     
      and Davis, he overheard a conversation by the defendants      
      discussing the shooting, heard Davis say that he had shot     
      J.W., and told Chisem that he should have hidden the          
      truck in a garage; and                                        
    •  Nelson, who testified that while incarcerated with Davis     
      and  Chisem,  Davis  told  Nelson  that  his  motive  for     
      shooting Harris was that Harris had shot him the previous     
      summer.                                                       
Id. at *4. Chisem further argued that those out-of-court statements—“made 
to Edmond, Tubbs, and Nelson, and admitted as admissions of a party  
opponent—would  have  been  inadmissible  hearsay  in  a  separate  trial 
against Chisem.” Id. at *2. Finally, Chisem challenged the admission of 
Nelson’s testimony because Graham had lost the recording of Nelson’s 
statement; “Chisem asserted that this was a discovery violation since he 
was  not  provided  with  that  recording.”  Id.  These  three  arguments 
constitute the three exhausted grounds for habeas review in the instant 
amended petition. ECF Nos. 11, 13.                                   
    The circuit court denied Chisem’s motion. First, the circuit court 
found “that there was no Confrontation Clause violation because Davis’s 
statements were nontestimonial and thus not covered by the Confrontation 
Clause.” Id. Second, the circuit court held that “the State’s argument that 
the evidence against Davis was also attributable to Chisem as a party to the 
crime was very persuasive” and, at a separate trial against Chisem, the out-
of-court  statements  “would  not  have  been  excluded  as  inadmissible 
hearsay . . .  with the exception of Nelson’s testimony.” Id. However, the 
circuit court determined that “the admission of Nelson’s testimony was 
harmless error.” Id. Finally, the circuit court concluded that “there was no 
discovery  violation  that  resulted  from  the  lost  recording  of  Nelson’s 
statement because there was no evidence that [] Graham acted in bad faith 
with the loss of the recording, and further, the admission of Nelson's 
testimony had been deemed harmless.” Id. The Wisconsin Court of Appeals 
affirmed, id. at *7, and the Wisconsin Supreme Court denied review, Chisem, 
933 N.W.2d 21.                                                       
    While Chisem presented all three of his grounds for relief in the 
instant amended petition to the Wisconsin Court of Appeals for review, the 
sole issue presented to the Wisconsin Supreme Court was the alleged  
Confrontation Clause violation. ECF No. 17-4 at 12.                  
3.   LEGAL STANDARD                                                  
    State criminal convictions are generally considered final. Review 
may  be  had  in  federal  court  only  on  limited  grounds.  Under  the 
Antiterrorism  and  Effective  Death  Penalty  Act  of  1996  (“AEDPA”),  a 
prisoner in custody pursuant to a state-court judgment of conviction is 
entitled to federal habeas relief only if he is “in custody in violation of the 
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 
    With respect to claims adjudicated on the merits in state court, a 
federal court can grant an application for a writ of habeas corpus “only if 
the state court’s decision was contrary to clearly established Supreme Court 
precedent, involved an unreasonable application of such precedent, or was 
based on an unreasonable determination of the facts in light of the evidence 
presented in state court.” Promotor v. Pollard, 628 F.3d 878, 888 (7th Cir. 2010) 
(citing 28 U.S.C. § 2254(d)); see also White v. Woodall, 134 S. Ct. 1697, 1702 
(2014)). The burden of proof rests with the petitioner. Cullen v. Pinholster, 
563 U.S. 170, 181 (2011). The relevant decision for this Court to review is 
that of the last state court to rule on the merits of the petitioner’s claim. 
Charlton v. Davis, 439 F.3d 369, 374 (7th Cir. 2006). Importantly, federal 
habeas review is not available, and federal courts lack jurisdiction, where 
“a question of federal law decided by a state court . . . rests on a state law 
ground that is independent of the federal question and adequate to support 
the judgment.” Coleman v. Thompson, 501 U.S. 722, 729 (1992).        
    A state-court decision runs contrary to clearly established Supreme 
Court precedent “if it applies a rule that contradicts the governing law set 
forth in [those] cases, or if it confronts a set of facts that is materially 
indistinguishable from a decision of [the Supreme] Court but reaches a 
different result.” Brown v. Payton, 544 U.S. 133, 141 (2005). A state court 
unreasonably applies clearly established Supreme Court precedent when it 
applies that precedent to the facts in an objectively unreasonable manner. 
Id.; Bailey v. Lemke, 735 F.3d 945, 949 (7th Cir. 2013). A state-court decision 
is based on an unreasonable determination of the facts “when it ‘rests upon 
fact-finding that ignores the clear and convincing weight of the evidence.’” 
McManus  v.  Neal,  779  F.3d  634,  649  (7th  Cir.  2015)  (quoting  Goudy  v. 
Basinger, 604 F.3d 394, 399 (7th Cir. 2010)).                        
    The  AEDPA  undoubtedly  mandates  a  deferential  standard  of 
review.  The  Supreme  Court  has  “emphasized  with  rather  unexpected 
vigor” the strict limits imposed by Congress on the authority of federal 
habeas courts to overturn state criminal convictions. Price v. Thurmer, 637 
F.3d 831, 839 (7th Cir. 2011). It is not enough for the petitioner to prove the 
state courts were wrong; he must also prove they acted unreasonably. 
Harrington v. Richter, 562 U.S. 86, 101 (2005); Campbell v. Smith, 770 F.3d 540, 
546 (7th Cir. 2014) (“An ‘unreasonable application of’ federal law means 
‘objectively unreasonable, not merely wrong; even ‘clear error’ will not 
suffice.’”) (quoting White, 134 S. Ct. at 1702).                     
    Indeed, the habeas petitioner must demonstrate that the state court 
decision is “so erroneous that ‘there is no possibility fairminded jurists 
could disagree that the state court’s decision conflicts with [the Supreme] 
Court’s precedents.’” Nevada v. Jackson, 569 U.S. 505, 508–09 (2013) (quoting 
Harrington, 562 U.S. at 102). The state court decisions must “be given the 
benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002); Hartjes v. 
Endicott,  456  F.3d  786,  792  (7th  Cir.  2006).  As  the  Supreme  Court  has 
explained, “[i]f this standard is difficult to meet, that is because it was 
meant to be.” Harrington, 562 U.S. at 102. Indeed, Section 2254(d) stops just 
short of “imposing a complete bar on federal-court relitigation of claims 
already rejected in state proceedings.” See id. This is so because “habeas 
corpus is a ‘guard against extreme malfunctions in the state criminal justice 
systems,’ not a substitute for ordinary error correction through appeal.” Id. 
at 102–03 (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, 
J., concurring)).                                                    
    A  federal  court  may  also  grant  habeas  relief  on  the  alternative 
ground that the state court’s adjudication of a constitutional claim was 
based upon an unreasonable determination of the facts in light of the 
evidence presented.  28  U.S.C. §  2254(d)(2).  The underlying  state  court 
findings of fact and credibility determinations are, however, presumed 
correct.  Newman  v.  Harrington,  726  F.3d  921,  928  (7th  Cir.  2013).  The 
petitioner overcomes that presumption only if he proves by clear and 
convincing evidence that those findings are wrong. 28 U.S.C. § 2254(e)(1); 
Campbell,  770  F.3d  at  546.  “A  decision  ‘involves  an  unreasonable 
determination of the facts if it rests upon factfinding that ignores the clear 
and convincing weight of the evidence.’” Bailey, 735 F.3d at 949–50 (quoting 
Goudy v. Basinger, 604 F.3d 394, 399–400 (7th Cir. 2010)). “‘[A] state-court 
factual  determination  is  not  unreasonable  merely  because  the  federal 
habeas  court  would  have  reached  a  different  conclusion  in  the  first 
instance.’” Burt v. Titlow, 571 U.S. 12, 18 (2013) (quoting Wood v. Allen, 558 
U.S. 290, 301 (2010)). If shown, an unreasonable factual determination by 
the state court means that this Court must review the claim in question de 
novo. Carlson v. Jess, 526 F.3d 1018, 1024 (7th Cir. 2008).          
4.   ANALYSIS                                                        
    4.1  Chisem’s Motion to Appoint Counsel                         
    Chisem requests that the Court appoint him counsel in this case.  
ECF No. 24. The Criminal Justice Act, 18 U.S.C. § 3006A(a)(2)(B), authorizes 
a district court to appoint counsel for a petitioner seeking habeas relief 
under 28 U.S.C. § 2254.  Before the Court appoints counsel, however, it must 
determine whether the appointment would serve “the interests of justice” 
and  whether  the  petitioner  is  “financially  eligible.”  See  18  U.S.C.  § 
3006A(a)(2). Appointing counsel for pro se petitioners in habeas corpus 
cases is a power commended to the discretion of the district court in all but 
the most extraordinary circumstances. Winsett v. Washington, 130 F.3d 269, 
281 (7th Cir. 1997).                                                 
    In this instance, the Court is not convinced that appointment of 
counsel would serve the interests of justice. In determining whether the 
interests of justice will be served by appointing counsel, the Court considers 
the difficulty of the case and the petitioner’s ability.  It is significant that in 
most habeas cases the issues raised in federal court have been raised and 
fully considered in state court.  See 28 U.S.C. § 2254(b)(1)(A).  This means 
that  typically,  assuming  he  was  represented  by  counsel  in  state  court 
proceedings, the petitioner will have the benefit of his previous attorney’s 
briefing on the very same issues he seeks to raise in federal court.  That is 
true in this case.                                                   
           The three Grounds Chisem presents, ECF Nos. 11, 13, were already 
well-developed in the state court proceedings.  Indeed, based on the Court’s 
review of the amended petition, answer and exhibits attached thereto, not 
only  does  the  Court  find  appointment  of  counsel  unnecessary,  it  also 
concludes that further briefing is unnecessary and will proceed to decide 
the case on the record before it.  Accordingly, Chisem’s motion to appoint 
counsel will be denied.                                              
    4.2  Chisem’s Motion for Evidentiary Hearing                    
    Chisem  moves  for  an  evidentiary  hearing  under  28  U.S.C.  § 
2254(e)(2). ECF No. 24 at 3. In support, Chisem argues that “[i]n Wisconsin, 
for a defendant to be granted an evidentiary hearing[,] he or she must allege 
facts which, if true, would entitle a defendant to relief.” Id. (citing State v. 
Bentley, 548 N.W.2d 50, 53–54 (Wis. 1996)).                          
    Chisem contends that he has alleged sufficient facts supporting a 
Confrontation Clause violation and thus should be granted an evidentiary 
hearing.  Id.  However,  the  standard  for  an  evidentiary  hearing  under 
Wisconsin law is not the applicable standard; rather the Section 2254(e)(2) 
standard is. Shinn, 142 S. Ct. at 1734. Under the Section 2254(e)(2) standard, 
a federal court may hold an evidentiary hearing on a claim “in only two 
limited  scenarios.”  Id.  “Either  the  claim  must  rely  on  (1)  a  ‘new’  and 
‘previously  unavailable’  ‘rule  of  constitutional  law’  made  retroactively 
applicable by [the U.S. Supreme] Court, or (2) ‘a factual predicate that could 
not  have  been  previously  discovered  through  the  exercise  of  due 
diligence.’” Id. (quoting 28 U.S.C. § 2254(e)(2)(A)). Next, “if a prisoner can 
satisfy either of these exceptions, he also must show that further factfinding 
would demonstrate, ‘by clear and convincing evidence,’ that ‘no reasonable 
factfinder’ would have convicted him of the crime charged.” Id. (quoting 28 
U.S.C. § 2254(e)(2)(B)). Nonetheless, “even if all of these requirements are 
satisfied, a federal habeas court still is not required to hold a hearing or take 
any evidence.” Id.                                                   
    As explained further below, Chisem has identified neither a new or 
previously  unavailable  rule  of  constitutional  law  made  retroactively 
applicable by the U.S. Supreme Court, nor a factual predicate that could not 
have been previously discovered through the exercise of due diligence. 
Indeed, he reiterates the same underlying facts that passed through the 
state  courts  already.  The  Court  will  deny  Chisem’s  motion  for  an 
evidentiary hearing.                                                 
    4.3  Grounds Raised in Amended Petition                         
    As  explained  further  below,  Grounds  One  and  Three  were  not 
exhausted in the state courts, and thus are procedurally defaulted, as only 
Ground Two was presented to the Wisconsin Supreme Court for review.  
That conclusion is largely academic, however, because the Court agrees 
with Respondent that “the [unexhausted] severance claim [Ground One] is 
primarily,  if  not  totally,  based  on  the  [exhausted]  confrontation  claim 
[Ground Two],” ECF No. 21 at 8 n.1, and that the Wisconsin Court of  
Appeals dismissed Ground Three on an independent and adequate state  
law ground, thus rendering it ineligible for federal habeas review in any 
event, see id. at 4.  Moreover, the statements underlying the unexhausted 
and defaulted Ground Three discovery violation claim are also subject to 
the  exhausted  Ground  Two  Confrontation  Clause  claim,  and  will  be 
addressed in this Order on that basis.                               
    In light of the standard of review, therefore, the Court must answer 
the following question: whether Chisem has proven that the Wisconsin 
Court of Appeals rejected his claim that his Confrontation Clause rights 
were violated by the admission of Davis’s statements in a manner that was 
contrary to, or involved an unreasonable application of, clearly established 
federal  law;  or  in  a  manner  that  was  based  on  an  unreasonable 
determination of the facts in light of the evidence presented. As explained 
further below, the Court finds that the answer is no.                
         4.3.1  Trial  Severance  and  Inadmissible  Hearsay  at  a 
              Severed Trial (Ground One) and Nelson’s Testimony     
              (Ground Three)                                        
    The Wisconsin Court of Appeals heard and adjudicated Chisem’s   
claim that Davis’s out-of-court statements—“made to Edmond, Tubbs, and 
Nelson, and admitted as admissions of a party opponent—would have    
been inadmissible hearsay in a separate trial against Chisem.” Chisem, 2019 
WL 1035482, at *2. The trial severance and inadmissible hearsay issues 
constitute Chisem’s Ground One in the instant amended petition. ECF No. 
11 at 6 (Ground One: “State misused its discretion when it denied Chisem’s 
Motion to sever himself and codefendant Davis for trial because an entire 
line of evidence relevant to Davis’ liability also came in against Chisem 
which  would  not  have  been  admissible  had  Chisem  been  tried  
separately.”).                                                       
    The  Wisconsin  Court  of  Appeals  also  heard  and  adjudicated 
Chisem’s claim challenging the circuit court’s decision to permit Nelson to 
testify despite Graham having lost the recording of Nelson’s statement; 
“Chisem asserted that this was a discovery violation since he was not 
provided  with  that  recording.”  Chisem,  2019  WL  1035482,  at  *2.  The 
propriety of the circuit court’s decision to permit Nelson to testify despite 
the lost recording constitutes Chisem’s Ground Three, as labeled in the 
Court’s screening order.3 ECF No. 11 at 9 (“The circuit court misused its 
discretion in allowing Willie Nelson to testify because the court did not use 
the correct legal standard (GOOD CAUSE) and because Det. Grahams [sic] 
negligence in losing Nelsons [sic] recorded interview does not constitute 
good cause under the discovery statute.”).                           
    However, Chisem procedurally defaulted on both of these Grounds, 
because he did not present them to the Wisconsin Supreme Court for   
review. The Seventh Circuit has provided recent instruction on procedural 
default:                                                             
    Procedural  defaults  take  several  forms,  but  two  are      
    paradigmatic.  On  the  one  hand,  a  claim  might  be         
    procedurally  defaulted  when  a  petitioner  fails  to  “fairly 
    present” his claim to the state courts, regardless of whether he 
    initially preserved it with an objection at the trial level. To 

    3This Ground was labeled Ground Four in the amended petition, but the 
Court’s screening order labels it Ground Three, as the Court determined that the 
Ground listed as Ground Three in the amended petition is duplicative of Ground 
One. ECF No. 13 at 3 n.1.                                            
    fairly present his federal claim, a petitioner must assert that 
    claim throughout at least one complete round of state-court     
    review, whether on direct appeal of his conviction or in post-  
    conviction  proceedings.  The  complete  round  requirement     
    means that the petitioner must raise the issue at each and      
    every level in the state court system, including levels at which 
    review is discretionary rather than mandatory. On the other     
    hand, a claim might be procedurally defaulted through a         
    petitioner’s initial failure to preserve it with an objection, even 
    if the petitioner later does attempt to present it for review.  
    “[W]hen  a  state  court  refuses  to  reach  the  merits  of  a 
    petitioner’s federal claims because they were not raised in     
    accord  with  the  state’s  procedural  rules  (i.e.,  because  the 
    petitioner failed to contemporaneously object), that decision   
    rests  on  independent  and  adequate  state  procedural        
    grounds.” [Kaczmarek v. Rednour, 627 F.3d 586, 591 (7th Cir.    
    2010).]                                                         
Richardson v. Lemke, 745 F.3d 258, 268-69 (7th Cir. 2014) (citations omitted). 
    As  to  the  first  iteration,  “fair  presentment”  requires  that  the 
petitioner fully present his federal claims to the state courts, giving the state 
courts a meaningful opportunity to pass on them. Anderson v. Benik, 471 
F.3d 811, 814 (7th Cir. 2006). In Wisconsin, this means presentation of all 
federal claims subject to the habeas petition must have been made to the 
Wisconsin Supreme Court. Grady v. Cooper, 511 F. Supp. 3d 918, 930 (E.D. 
Wis. 2021). The factual and legal substance of what the petitioner presents 
to the federal and state courts must remain similar. Anderson, 481 F.3d at 
814. This iteration defeats Grounds One and Three. Chisem did not present 
any of those issues to the Wisconsin Supreme Court; to the Wisconsin 
Supreme Court, he presented only Ground Two: that the Wisconsin Court 
of Appeals applied the wrong test to its determination of the Confrontation 
Clause  claim.  ECF  No.  17-4.  Because  Chisem  did  not  allow  fair 
consideration of Grounds One and Three in the Wisconsin courts, this 
Court must dismiss them from this action.                            
    As noted above, however, this conclusion, though meaningful in  
form, is academic in substance. The unexhausted Ground One claim largely 
depends on the Court’s holding as to the exhausted Ground Two claim. As 
to Ground Three, even if it was not procedurally defaulted based on failure 
to exhaust, it would be unavailable for federal habeas review on the basis 
of the second iteration of procedural default. Moreover, although the issue 
underlying Ground Three—the circuit court’s decision to permit Nelson to 
testify  despite  Graham  having  lost  his  recording—is  unexhausted  and 
procedurally  defaulted,  the  Court  still  addresses  the  admissibility  of 
Davis’s out-of-court statements to Nelson in its review of Ground Two.  
    The second iteration of procedural default cautions that “[w]hen the 
last state court to issue an opinion on a petitioner’s federal claim has 
resolved that claim on an adequate and independent state ground, federal 
habeas review of the claim is foreclosed.” Miranda v. Leibach, 394 F.3d 984, 
991 (7th Cir. 2005). “The doctrine applies regardless of whether the state 
law ground is substantive or procedural.” Richardson, 745 F.3d at 268. 
Where the doctrine applies, “[a]ny such ruling on the federal claims would 
be advisory, given the fact that on remand the state court would still deny 
petitioner relief on the independent and adequate state law ground.” Woods 
v. Schwartz, 589 F.3d 369, 373 (7th Cir. 2009) (citing Coleman, 501 U.S. at 729 
(“Because this Court has no power to review a state law determination that 
is sufficient to support the judgment, resolution of any independent federal 
ground for the decision could not affect the judgment and would therefore 
be advisory.”)).                                                     
    While  “it  is  not  always  easy  for  a  federal  court  to  apply  the 
independent and adequate state ground doctrine,” courts will presume that 
there is no independent and adequate state law ground when a state court’s 
adjudication of a federal claim “fairly appears to rest primarily on federal 
law, or to be interwoven with the federal law, and when the adequacy and 
independence of any possible state law ground is not clear from the face of 
the opinion.” Coleman, 501 U.S. at 735 (citations omitted). It follows that, to 
apply the doctrine, “[t]he state court must have actually relied on that 
rule—and  not  on  a  parallel  or  interwoven  federal  basis—in  order  to 
foreclose our review.” Richardson, 745 F.3d at 269 (“We do not construe 
genuine ambiguity in favor of the state; if it ‘fairly appears’ that the state 
court  rested  its  decision  primarily  on  federal  law  or  is  interwoven 
therewith, a federal court may review the federal question unless the state 
court’s opinion contains a “plain statement” that its decision rests on state 
grounds.”) (citations omitted). Indeed, in Richardson, the presumption of no 
independent and adequate state law ground was overcome where, even   
though federal case law was cited, the surrounding context of the state 
court’s decision indicated that it did not “rest” or “rely” on federal case law, 
but rather on an Illinois rule on preservation of claims. Id. at 269–70. 
    Here, the Wisconsin Court of Appeals rested its determination as to 
Chisem’s claim that Nelson should have been excluded from testifying on 
the basis of the lost recording entirely upon a Wisconsin discovery statute 
and Wisconsin case law setting the standard to be applied to the Wisconsin 
discovery statute. Chisem, 2019 WL 1035482, at *7. Thus, in addition to being 
unexhausted,  Ground  Three  is  procedurally  defaulted  in  light  of  the 
independent  and  adequate  state  law  ground  doctrine.  However,  as 
discussed, Davis’s statements to Nelson (that were ostensibly relayed to 
Graham by Nelson on the lost recording) are included in the out-of-court 
statements the Court analyzes in its review of Ground Two.           
         4.3.2  Confrontation Clause – Ground Two                   
    In Ground Two, Chisem contends that his Confrontation Clause    
rights were violated when the circuit court allowed Davis’s out-of-court 
statements to be used as evidence against Chisem at their joint trial where 
Davis did not testify. ECF No. 20 at 6. Chisem challenges the admission of 
the statements made by Davis to the following individuals, which were 
specifically enumerated and analyzed on Confrontation Clause grounds by 
the Wisconsin Court of Appeals:                                      
    •  Edmond, who testified that the day after the shooting both   
      Chisem and Davis came to his workplace, where Davis           
      instructed  Edmond  not  to  say  anything  about  the        
      shooting;                                                     
    •  Tubbs, who testified that while incarcerated with Chisem     
      and Davis, he overheard a conversation by the defendants      
      discussing the shooting, heard Davis say that he had shot     
      J.W., and told Chisem that he should have hidden the          
      truck in a garage; and                                        
    •  Nelson, who testified that while incarcerated with Davis     
      and  Chisem,  Davis  told  Nelson  that  his  motive  for     
      shooting Harris was that Harris had shot him the previous     
      summer.                                                       
Id. at 7, 17, 22; Chisem, 2019 WL 1035482, at *5.                    
    Chisem also challenges the admission of Smith’s testimony about 
Harris’s statements to Smith regarding Harris’s shooting of Howard Davis4 

    4Again to avoid confusion, see supra n.2, as co-defendant Howard Davis 
and unrelated witness Vernecia Davis have the same last name, the Court refers to 
Vernecia Davis as “Vernecia” and reinstates Howard Davis’s full name in this 
paragraph. All other references in this Order to “Davis” refer to co-defendant 
Howard Davis.                                                        
in 2013. ECF No. 20 at 24. Finally, Chisem challenges the admission of 
statements made by Howard Davis to Vernecia Davis (“Vernecia”), a friend 
of Harris’s mother. Id. at 22. Howard Davis’s statements to Vernecia were 
that Harris had shot Howard Davis in 2013, and that Vernecia was not to 
say anything about that incident. ECF No. 17-2 at 25. Smith’s testimony and 
Howard Davis’s statements to Vernecia were raised in Chisem’s brief to the 
Wisconsin Court of Appeals. Id. at 24–25, nn. 4–5 (arguing that Harris’s 
statements to Smith are “relevant and probative of [Howard] Davis’[s] 
guilt” and that Howard Davis’s statements to Vernecia are “admissible 
against [Howard] Davis as a statement by a party opponent,” but would 
not be relevant or admissible, respectively, against Chisem in a severed 
trial).                                                              
    As mentioned, the sole issue that Chisem presented to the Wisconsin 
Supreme Court, see supra Section 4.3.1, was the admissibility of Davis’s out-
of-court  statements  on  Confrontation  Clause  grounds.  Although  the 
Wisconsin Court of Appeals did not specifically address Davis’s statements 
to Vernecia, the same review the Court takes up next as to the Confrontation 
Clause  applies  to  those  statements.  As  to  the  relevancy  challenges 
regarding Harris’s statements to Smith, relevancy was not exhausted, as it 
was not raised before the Wisconsin Supreme Court.  Even so, although the 
Wisconsin Court of Appeals did not directly address Smith’s statements, it 
addressed the relevancy argument as to other statements, holding that out-
of-court statements relevant to Davis’s guilt and motive are also “relevant 
to Chisem’s case because he was charged as a party to a crime.” Chisem, 
2019 WL 1035482, at *4. The bases for the holding were Wisconsin’s “Parties 
to crime” and “Definition of relevant evidence” statutes. Id. (citing Wis. Stat. 
§§  939.05(2),  904.01)).  Thus,  in  addition  to  being  unexhausted,  this 
argument  is  procedurally  defaulted  on  the  basis  of  an  adequate  and 
independent state law ground.                                        
    Consequently, the Court turns to its analysis of the sole exhausted 
ground: whether Chisem has proven that the Wisconsin Court of Appeals 
rejected his claim that his Confrontation Clause rights were violated by the 
admission of Davis’s statements in a manner that was contrary to, or 
involved an unreasonable application of, clearly established federal law; or 
in a manner that was based on an unreasonable determination of the facts 
in light of the evidence presented. Here, the Wisconsin Court of Appeals 
specifically addressed Chisem’s argument and thoroughly analyzed the 
applicable state and federal case law. Chisem, 2019 WL 1035482, at *4–*6. 
    First, the Wisconsin Court of Appeals noted that “[a] defendant has 
the right to confront witnesses against him or her, as guaranteed by the 
Sixth  Amendment  to  the  United  Stated  Constitution  as  well  as  the 
Wisconsin Constitution.” Id. at *4 (citing State v.  Nieves, 897 N.W.2d 363, 
369 (Wis. 2017)). Still, however, “as demonstrated by Davis, a defendant 
also has a constitutional right against self-incrimination afforded by the 
Fifth  Amendment.”  Id.  “As  a  result,  ‘tension’  between  these  two 
constitutional rights may arise in cases where defendants are tried jointly.” 
Id. This tension led to the development of the Bruton doctrine, which holds 
that admission of a co-defendant’s statement inculpating the defendant 
cannot be introduced at a joint trial where the co-defendant does not take 
the stand. Bruton v. United States, 391 U.S. 123, 126 (1968).        
    The Wisconsin Court of Appeals next observed that the exact issue 
Chisem presented was recently addressed by the Wisconsin Supreme Court 
in Nieves. There, the Wisconsin Supreme Court, relying on the U.S. Supreme 
Court’s  holding  in  Crawford  v.  Washington,  541  U.S.  36  (2004)  and  its 
progeny,  held  that  “in  cases  where  inculpatory  statements  of  a  non-
testifying codefendant are nontestimonial, the confrontation rights of the 
codefendant  challenging  the  admission  of  those  statements  are  not 
violated.”  Id.  (citing  Nieves,  897  N.W.2d  at  366).  Like  certain  of  the 
statements in Chisem’s case (i.e., the statements by Davis to Tubbs and 
Nelson), the statements in Nieves were jailhouse statements made to fellow 
inmates. Looking to U.S. Supreme Court case law, the Nieves court held that 
statements made by one inmate to another are “clearly nontestimonial.” 
Nieves, 897 N.W.2d at 375 (quoting Dutton v. Evans, 400 U.S. 74, 87–89 
(1970)); Chisem, 2019 WL 1035482, at *5 (discussing the same). Whether a 
statement is testimonial, the Nieves court continued, depends on “[t]he 
context in which [the] statement is made.” Id. at 374; see also Chisem, 2019 
WL 1035482, at *5 (discussing the same). “Statements made to someone who 
is  not  principally  charged  with  uncovering  and  prosecuting  criminal 
behavior are significantly less likely to be testimonial than statements given 
to law enforcement officers.” Id. at 375 (quoting Ohio v. Clark, 576 U.S. 237, 
248–49 (2015)); see also Chisem, 2019 WL 1035482, at *5 (discussing the same). 
    Before the Wisconsin Court of Appeals, Chisem argued that Nieves 
did not explicitly overrule the Wisconsin Supreme Court’s prior holding in 
State v. Manuel, 697 N.W.2d 811 (Wis. 2005). In “an abundance of caution,” 
the Manuel court had retained the U.S. Supreme Court’s analysis in Ohio v. 
Roberts, 448 U.S. 56 (1980) because Crawford “reupdiate[ed], [but did] not 
overrul[e]” Roberts. 697 N.W.2d at 817. The Roberts analysis “interpreted the 
[Confrontation] Clause to permit the admission of out-of-court statements 
by an unavailable witness, so long as the statements bore ‘adequate indicia 
of reliability.’” Clark, 576 U.S. at 244 (quoting Roberts, 448 U.S. at 66). In 
contrast,  the  Crawford  analysis  examined  the  meaning  of  the  words 
“witnesses” and “testimony” in the Confrontation Clause, and taught that 
there was a difference between “testimonial” out-of-court statements by a 
nontestifying witness, and “nontestimonial” statements by a nontestifying 
witness.  Id.  The  former  cannot  be  admitted  unless  the  witness  is 
“unavailable to testify, and the defendant had had a prior opportunity for 
cross-examination,”  while  the  Crawford  Court  “afford[ed]  the  States 
flexibility” as to the latter, which expressly included allowing states to 
adopt “an approach that exempted such statements from Confrontation  
Clause scrutiny altogether.” Crawford, 541 U.S. at 68. The Crawford Court 
implied that the Roberts approach could be one such approach taken by 
states as to nontestimonial statements. Id.                          
    The  Manuel  court,  in  its  2005  decision  without  the  benefit  of 
additional guidance from the U.S. Supreme Court, retained Roberts. Manuel, 
697  N.W.2d  at  826  (“While  the  Crawford  Court  abrogated  Roberts  by 
highlighting its shortcomings and failures, the Court declined to overrule 
Roberts and expressly stated that the states were free to continue using 
Roberts when dealing with nontestimonial hearsay.”).                 
    However, in 2017, the Wisconsin Supreme Court had occasion to   
revisit the issue in Nieves, this time with additional guidance from the U.S. 
Supreme  Court.  897  N.W.2d  at  371.  The  Nieves  court,  relying  on  U.S. 
Supreme Court decisions since Crawford that hold that “the Confrontation 
Clause applies only to testimonial statements,” rejected the Roberts test. Id. 
The Nieves court then held that, given the Crawford “seismic shift in how 
courts analyze the Confrontation Clause,” the Bruton doctrine, as a result, 
is now “limited to cases in which a non-testifying codefendant’s statement 
was testimonial.” 897 N.W.2d at 372–73  (citing United States v. Berrios, 676 
F.3d 118, 128 (3d Cir. 2012) (“[B]ecause Bruton is no more than a by-product 
of the Confrontation Clause, the Court’s holdings in Davis and Crawford 
likewise limit Bruton to testimonial statements.”); United States v. Figueroa-
Cartagena, 612 F.3d 69, 85 (1st Cir. 2010) (“It is . . . necessary to view Bruton 
through the lens of Crawford and Davis.”); United States v. Wilson, 605 F.3d 
985, 1017 (D.C. Cir. 2010) (“The appellants have no Bruton claim, however, 
because  Franklin’s  concessions  through  counsel  do  not  implicate  the 
Confrontation Clause.”); United States v. Johnson, 581 F.3d 320, 326 (6th Cir. 
2009) (“Because it is premised on the Confrontation Clause, the Bruton rule, 
like  the  Confrontation  Clause  itself,  does  not  apply  to  nontestimonial 
statements.”); United States v. Spotted Elk, 548 F.3d 641, 662 (8th Cir. 2008) 
(Bruton does not apply to nontestimonial statements); United States v. Clark, 
717 F.3d 790, 816 (10th Cir. 2013 (same)).                           
    The Wisconsin Court of Appeals rejected Chisem’s argument that  
Nieves did not overrule Manuel. Chisem, 2019 WL 1035482, at *5 (“Given our 
supreme  court’s  holding  in  Nieves—which  Chisem  acknowledges  is 
‘unambiguous’—and its rejection of the reasoning in Roberts, it follows that 
it also effectively rejected the reasoning in Manuel. Therefore, we apply the 
Nieves  rule  to  this  case,  and  conclude  that  Davis’s  statements  were 
nontestimonial.”). Thus, because all of the implicated statements—Davis’s 
statements  to  Edmond,  Tubbs,  and  Nelson—were  nontestimonial,  the 
Wisconsin  Court  of  Appeals  found  “no  violation  of  Chisem’s  right  to 
confrontation.” Id.5                                                 

    5It is on this point that the Court explained, supra pp. 14–15, that the 
unexhausted Ground One (severance) relies upon the exhausted Ground Two 
(Confrontation Clause). See Chisem, 2019 WL 1035482, at *5 (“Along a similar line 
of reasoning, Chisem next argues that severance was mandatory under Wis. Stat. 
§ 971.12(3) . . . . The Nieves court also addressed this statutory issue. It concluded 
that Crawford and its progeny had ‘limited the application of the Bruton doctrine 
    In support of the instant amended petition, Chisem argues that the 
Seventh Circuit’s decision in Brown v. Vanihel, 7 F.4th 666 (7th Cir. 2021) 
supports habeas relief. ECF No. 20 at 11. There, the district court granted 
habeas relief on the petitioner’s claim that his trial counsel was ineffective 
for failing to ask for a limiting instruction. Brown, 7 4th at 668. Specifically, 
the Seventh Circuit observed (on an appeal that was later dismissed as 
moot) that                                                           
    The root of the problem was a Bruton problem in Brown’s joint   
    trial . . . . The court admitted an out-of-court statement (a   
    jailhouse confession to another detainee) by the co-defendant.  
    The statement was hearsay as to Brown but implicated him in     
    the fatal shooting. Brown had no ability to cross-examine the   
    declarant, his co-defendant. Brown’s trial lawyer failed even   
    to ask for a limiting instruction, and the district court found 
    that  the  failure  amounted  to  deficient  performance  and   
    prejudiced Brown.                                               
Id.  The  limiting  instruction/ineffective  assistance  of  counsel  claim  was 
raised  as  ground  two  before  the  district  court,  while  the  broader 
Confrontation Clause/Bruton claim was raised as ground one before the 
district court. Brown v. Brown, No. 13-CV-1981, 2015 WL 1011371, at *1 (S.D. 
Ind.  Mar.  2,  2015).  The  district  court  originally  held  that  the  limiting 
instruction/ineffective  assistance  of  counsel  claim  was  procedurally 
defaulted because it had not been presented to the state courts, and ordered 
further briefing on the broader Confrontation Clause/Bruton claim. Id. at *4. 

to instances in which a codefendant's statements are testimonial’ and, as a result, 
‘Bruton  is  not  violated  by  the  admission  of  a  non-testifying  codefendant’s 
statements that are nontestimonial.’”) (quoting Nieves, 897 N.W.2d at 335–36). 
    The  Seventh  Circuit  reversed  and  remanded  on  the  limiting 
instruction/ineffective assistance of counsel claim, holding as a matter of 
first impression that the Martinez-Trevino doctrine applies in Indiana and, 
therefore, “ineffective assistance of post-conviction counsel may constitute 
cause and prejudice to overcome procedural default of Mr. Brown’s claim 
that his trial counsel was ineffective when he failed to request a limiting 
instruction regarding a witness’s recounting of incriminating statements 
made by Mr. Brown’s codefendant.” Brown v. Brown, 471 F. Supp. 3d 866, 
871 (S.D. Ind. 2020) (citing Martinez v. Ryan, 566 U.S. 1, 14 (2012); Trevino v. 
Thaler, 569 U.S. 413, 423 (2013)). Thereafter, the district court granted habeas 
relief on the grounds that “the remaining evidence [against the petitioner 
at trial] is circumstantial and not conclusive,” and, therefore, there was a 
reasonable probability of acquittal had the petitioner’s trial counsel secured 
a limiting instruction “preventing the jury from using [a witness’s] out-of-
court  statement[s]”  against  the  petitioner  at  trial  Id.  (internal  citations 
omitted).                                                            
    Chisem argues that, like the Brown defendant’s lawyer, his trial 
counsel “failed to even ask for a limiting instruction.” ECF No. 20 at 11. The 
problem is that Chisem has not exhausted any ineffective assistance of 
counsel  claim,  ECF  No.  8,  and  the  Seventh  Circuit  has  held  that  the 
Martinez-Trevino doctrine does not apply in Wisconsin. Nash v. Hepp, 740 
F.3d  1075,  1079  (7th  Cir.  2014)  (Martinez-Trevino  does  not  apply  in 
Wisconsin because “Wisconsin law expressly allows—indeed in most cases 
requires—defendants to raise claims of ineffective assistance of trial counsel 
as part of a consolidated and counseled direct appeal, and provides an 
opportunity to develop an expanded record”). Chisem contends that he has 
now raised an ineffective assistance of counsel claim as to failure to make a 
limiting instruction in a post-conviction motion under Wis. Stat. § 974.06. 
ECF No. 11 at 12; ECF No. 20 at 12. The circuit court denied his motion on 
April 12, 2021, and the motion is now before the Wisconsin Court of  
Appeals.6 Thus, the claim is not exhausted, and Martinez-Trevino does not 
provide cause to excuse the default as it did in Brown. See also, e.g., Whyte v. 
Winkleski, 34 F.4th 617, 624 (7th Cir. 2022).                        
    Notwithstanding that Martinez-Trevino does not apply in Wisconsin, 
Chisem argues that his failure to exhaust should be excused on the basis of 
cause and prejudice, as well as on the basis of a resulting fundamental 
miscarriage of justice. ECF No. 20 at 13–14; see also Bolton v. Apore, 730 F.3d 
685, 696 (7th Cir. 2013) (“Procedural default may be excused, however, if 
the petitioner can show both cause for and prejudice from the default, or 
can demonstrate that the district court’s failure to consider the claim would 
result in a fundamental miscarriage of justice.”).                   
    In his moving brief, Chisem argues that the cause to excuse his 
default is that his trial counsel was constitutionally ineffective by “fail[ing] 
to request a limiting instruction as it relates to the out-of-court hearsay 
statement made by codefendant to another jailhouse detainee. This failure 
was deficient as to trial counsel and is the exact type of external impediment 
that prevented the petitioner from presenting his claim.” ECF No. 20 at 13. 
“[I]neffective  assistance  adequate  to  establish  cause  for  the  procedural 
default  of  some  other  constitutional  claim  is  itself  an  independent 
constitutional claim.” Whyte, 34 F.4th at 624 (quoting Edwards v. Carpenter, 
529 U.S. 446, 451–52 (2000)). However, Chisem, in substance, argues that 

    6State v. Chisem, 2014CF003715 (Milwaukee Cnty. Circ. Ct. Aug. 24, 2014), 
available at https://wcca.wicourts.gov/ (last visited Nov. 28, 2022). 
the underlying ineffective assistance of trial counsel claim should itself 
serve as cause; he does not argue, for example, that his counsel on direct 
appeal was ineffective for failing to raise the ineffective assistance of trial 
counsel  claim  in  his  initial  appeal.  This  is  not  the  type  of  ineffective 
assistance of counsel “cause” that the case law supports. Cf. Brown, 471 F. 
Supp. 3d at 371 (Martinez-Trevino applies in Indiana and can provide cause 
to excuse procedural default of ineffective assistance of post-conviction 
counsel claim for failure to raise ineffective assistance of trial counsel). 
    In his reply brief, however, Chisem raises a claim for ineffective 
assistance of post-conviction counsel for failing to bring the underlying 
ineffective  assistance  of  trial  counsel  claim.  ECF  No.  23  at  2.  Chisem 
explains that both the underlying ineffective assistance of trial counsel 
claim  and  the  ineffective  assistance  of  post-conviction  claim  remain 
pending before the Wisconsin Court of Appeals as subject to Chisem’s Wis. 
Stat. § 974.06 motion. As explained above, the Court gave Chisem a choice 
between dismissing his petition without prejudice while he completed the 
exhaustion process, or to proceed on only the unexhausted grounds. ECF 
No. 8. Chisem chose the latter. ECF Nos. 10, 16. While “[m]eritorious claims 
of ineffective assistance can excuse a procedural default,” “those claims 
must themselves be preserved.” Richardson, 745 F.3d at 272 (“In order to use 
the independent constitutional claims of ineffective assistance of trial and 
appellate counsel as cause to excuse a procedural default, a petitioner is 
required to raise the claims through one full round of state court review, or 
face  procedural  default  of  those  claims  as  well.”)  (internal  citations 
omitted); see also Shinn v. Ramirez, 142 S.Ct. 1718, 1732 (2022) (“[T]o allow a 
state prisoner simply to ignore state procedure on the way to federal court 
would defeat the evident goal of the exhaustion rule.”). Thus, Chisem has 
not established cause. Chisem’s “failure to show cause to excuse his default 
means that [the Court’s] review is foreclosed; we need not consider the 
question of actual prejudice.” Richardson, 745 F.3d at 267.          
    Alternatively, Chisem argues that if the ineffective assistance of 
counsel claims are unexhausted, which the Court concludes they are, a 
fundamental miscarriage of justice would result if the Court does not 
review the claims because “the circuit court[’s] decision was based on an 
unreasonable determination of the evidence presented in state court.” ECF 
No. 20 at 14. Chisem further contends that “[t]he trial court failed to even 
give an explanation as to why it denied the claim[s] and merely adopted 
the  language  in  the  state’s  response  brief  saying  QUOTE:  the  state[’]s 
response brief exposes them for what they are: conclusory, unsupported 
and not clearly stronger than the claims raised on appeal. Also this decision 
was contrary to clearly established Supreme Court precedent in Strickland.” 
Id. (quoting Strickland v. Washington, 466 U.S. 668 (1984)).         
    The Court discerns that Chisem is referencing the circuit court’s 
decision on his Wis. Stat. § 974.06 motion as to the ineffective assistance of 
trial  and  post-conviction  counsel  claims,  which  are  currently  pending 
before the Wisconsin Court of Appeals. As the Court explained, those 
claims are unexhausted. Even if they were not, the Court gleans, based on 
the quoted language, that the circuit court’s decision on the Wis. Stat. § 
974.06 motion was based on the Romero-Georgana doctrine. State v. Romero-
Georgana, 849 N.W.2d 668, 679 (Wis. 2014) (to newly raise issues that could 
have been raised on direct appeal in a motion for post-conviction relief, a 
petitioner  must  “show  that  a  particular  nonfrivolous  issue  was  clearly 
stronger  than  issues”  that  were  presented  on  direct  appeal)  (citations 
omitted)  (emphasis  in  original).  The  Romero-Georgana  doctrine  is  an 
independent and adequate state procedural ground that precludes federal 
habeas  review.  Whyte,  34  F.4th  at  625;  see  also  Bolton,  730  F.3d  at  696 
(“Procedural default generally precludes a federal court from reaching the 
merits of a habeas claim when the claim was not presented to the state 
courts and it is clear that the state courts would now find the claim procedurally 
barred.”) (emphasis added).                                          
    Chisem  nonetheless  has  not  established  that  a  fundamental 
miscarriage  of  justice  would  occur  if  the  Court  does  not  consider  the 
unexhausted claims. “A fundamental miscarriage of justice occurs when ‘a 
constitutional violation has probably resulted in the conviction of one who 
is actually innocent.’” Wright v. Clark, 96 F. Supp. 2d 757, 759–60 (N.D. Ill. 
2000) (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). The Wisconsin 
Court  of  Appeals  specifically  reviewed  the  “credible  evidence  against 
Chisem presented at trial, outside of th[e] challenged statements.” Chisem, 
2019 WL 1035482, at *6. This evidence included:                      
    •  The  surveillance  video  from  the  neighboring  business   
      showing shots being fired from the silver Saturn;             
    •  The statement of Parker, who saw the Saturn at the scene     
      of the shooting;                                              
    •  The  unchallenged  statements  by  Edmond  regarding         
      seeing Chisem and Davis in the silver Saturn earlier on the   
      day of the shooting, and being at the scene of the shooting   
      where he heard shots come from that vehicle;                  
    •  The statements of Earnest, who was with Edmond, and          
      saw shots being fired from the Saturn;                        
    •  The Saturn being found at the home of Chisem's girlfriend;   
    •  The unchallenged statement of Tubbs that he heard both       
      Chisem  and  Davis  discussing  the  shooting  while          
      incarcerated with them.                                       
Id. The Wisconsin Court of Appeals concluded that this evidence was  
“sufficient to support the verdict against Chisem without the allegedly 
inadmissible statements.” Id. The Court will not disturb the Wisconsin 
Court of Appeals’ determination of the facts; such determination does not 
“ignore[] the clear and convincing weight of the evidence.” McManus, 779 
F.3d at 649.7 Moreover, Chisem does not offer any alternative evidence or 
proof to establish his actual innocence. Wright, 96 F. Supp. 2d at 760; see also 
Coy v. Iowa, 487 U.S. 1012, 1021–22 (1988) (Confrontation Clause errors 
subject to harmless error analysis; “harmlessness must . . . be determined 
on the basis of the remaining evidence”).                            
    Thus, the Court finds that the Wisconsin Court of Appeals properly 
applied established federal law when it held that Davis’s statements to 
Edmond, Tubbs, and Nelson were nontestimonial, and, therefore, there was 
no Confrontation Clause violation. The same is true as to Davis’s statements 
to Vernecia. Further, the Wisconsin Court of Appeals’ application of federal 
law  was  reasonable  given  the  facts  of  this  case.  Indeed,  Ground  Two 
appears to be nothing more than an attempt at a “do-over” in this Court. In 
support of Ground Two, Chisem parrots precisely the same arguments he 
and his counsel have made all along, in the hope that this Court will 
disagree with those before it. This is not an appropriate use of a federal 
habeas petition. In any event, the Wisconsin Court of Appeals’ decision was 
far from unreasonable. Rather, it was entirely consistent with federal law. 
At the very least, Chisem has not shown that all fairminded jurists would 
disagree  with  the  Wisconsin  Court  of  Appeals’  reasoning.  He  is  not, 
therefore, entitled to federal habeas relief as to his sole exhausted ground: 
Ground Two.                                                          

    7In this regard, Chisem’s case differs significantly from the petitioner’s case 
in Brown, discussed supra pp. 26–28.                                 
    The Court separately determines that Chisem’s ineffective assistance 
of trial counsel claim as to the limiting instruction, as well as his ineffective 
assistance of post-conviction counsel claim, are not exhausted, and he has 
not established cause therefore, or that failure to consider the claims will 
result in a fundamental miscarriage of justice. The claims remain pending 
before the Wisconsin Court of Appeals.                               
5.   CONCLUSION                                                      
    Chisem  has  not  shown  that  the  Wisconsin  Court  of  Appeals 
incorrectly and unreasonably applied clearly established federal law as to 
his Confrontation Clause claim (the sole exhausted Ground Two claim). 
Likewise, Chisem has not shown that the Wisconsin Court of Appeals’  
decision  rejecting  his  Confrontation  Clause  claim  was  based  on  an 
unreasonable determination of the facts in light of the evidence presented 
in state court. Chisem’s amended petition must, therefore, be denied and 
his case dismissed with prejudice.                                   
    Under Rule 11(a) of the Rules Governing Section 2254 Cases, “[t]he 
district court must issue or deny a certificate of appealability when it enters 
a final order adverse to the [habeas] applicant.” To obtain a certificate of 
appealability, Chisem must make a “substantial showing of the denial of a 
constitutional right,” 28 U.S.C. § 2253(c)(2), by establishing that “reasonable 
jurists could debate whether (or, for that matter, agree that) the amended 
petition should have been resolved in a different manner or that the issues 
presented were adequate to deserve encouragement to proceed further,” 
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal citations omitted). For 
the reasons discussed above, no reasonable jurists could debate whether 
Chisem’s exhausted Ground Two claim and unexhausted Ground One and   
Ground Three claims have merit. The Court will, therefore, deny Chisem a 
certificate of appealability. 
     Accordingly, 
     IT IS ORDERED that Petitioner Jarmel Dontra Chisem’s amended 
petition for a writ of habeas corpus, ECF No. 11, be and the same is hereby 
DENIED; 
     IT  IS  FURTHER  ORDERED  Petitioner  Jarmel  Dontra  Chisem’s 
motion to appoint counsel and for an evidentiary hearing, ECF No. 24, be 
and the same is hereby DENIED; 
     IT  IS  FURTHER  ORDERED  that  Respondent  Dylon  Radtke’s 
motion to strike, ECF No. 30, be and the same is hereby DENIED as moot; 
     IT IS FURTHER ORDERED that a certificate of appealability as to 
Petitioner Jarmel Dontra Chisem’s amended petition, ECF No. 11, be and 
the same is hereby DENIED; and 
     IT  IS  FURTHER  ORDERED  that this  action be  and  the  same  is 
hereby DISMISSED with prejudice. 
     The Clerk of the Court is directed to enter judgment accordingly 
     Dated at Milwaukee, Wisconsin, this 28th day of November, 2022. 
                                 yw 
                             wee       ) 
                             J.  Stach ueller 
                             U.S»  District Judge 

                          Page 34 of 35 

This  Order and the judgment to follow are final. A dissatisfied party may appeal this 
Cour t’s decision to the Court of Appeals for the Seventh Circuit by filing in this Court 
a not ice of appeal within thirty (30) days of the entry of judgment. See Fed. R. App. P. 
3, 4.  This Court may extend this deadline if a party timely requests an extension and 
shows good cause or excusable neglect for not being able to meet the thirty-day 
deadline. See Fed. R. App. P. 4(a)(5)(A). Moreover, under certain circumstances, a party 
may  ask  this  Court  to  alter  or  amend  its  judgment  under  Federal  Rule  of  Civil 
Procedure 59(e) or ask for relief from judgment under Federal Rule of Civil Procedure 
60(b). Any motion under Federal Rule of Civil Procedure 59(e) must be filed within 
twenty-eight (28) days of the entry of judgment. The Court cannot extend this deadline. 
See Fed. R. Civ. P. 6(b)(2). Any motion under Federal Rule of Civil Procedure 60(b) must 
be filed within a reasonable time, generally no more than one year after the entry of the 
judgment. The Court cannot extend this deadline. See id. A party is expected to closely 
review all applicable rules and determine what, if any, further action is appropriate in 
a case.