Robinson, Harry v. Kaul, Josh

               IN THE UNITED STATES DISTRICT COURT                       
             FOR THE WESTERN DISTRICT OF WISCONSIN                       


HARRY A. ROBINSON,                                                       

                   Petitioner,                                           
                                           OPINION and ORDER             
     v.                                                                  


                                                23-cv-636-jdp            
KEVIN A. CARR,                                                           

                   Respondent.                                           


    Petitioner Harry A. Robinson, proceeding without counsel, seeks relief under 28 U.S.C. 
§  2254  following  his  convictions  for  delivering  heroin  in  Milwaukee  County  Case 
No. 2014CF1137. I screened the amended petition, found that Robinson failed to exhaust 
state-court remedies on claims 1 and 4, and determined that he didn’t show good cause to stay 
the amended petition and hold the unexhausted claims in abeyance under Rhines v. Weber, 
544 U.S. 269 (2005). Dkt. 11. Pursuant to Rose v. Lundy, 455 U.S. 509 (1982), I gave 
Robinson the choice of returning to state court to exhaust claims 1 and 4, or of filing a second 
amended petition bringing only his exhausted claims (claims 2, 3, and 5).  
    Robinson informed the court that he doesn’t want to return to state court. Dkt. 12 at 
1. But Robinson contends that my finding that he failed to exhaust claims 1 and 4 was 
erroneous. See id. at 1–2. Robinson hasn’t shown that my order was erroneous. See id. 
    Therefore, I will screen claims 2, 3, and 5 of the amended petition under Rule 4 of the 
Rules Governing § 2254 Cases. Rule 4 requires me to examine the amended petition and 
supporting exhibits and dismiss that submission if it “plainly appears” that Robinson isn’t 
entitled to relief. I may take judicial notice of records in Robinson’s underlying state court 
proceedings  when  reviewing  the  amended  petition  under  Rule  4.  See  Green  v.  Warden, 
699 F.2d 364, 369 (7th Cir. 1983). Claims 2, 3, and 5 plainly lack merit; I will deny the 
amended petition.                                                         

                         BACKGROUND                                      
    This background is drawn primarily from the state court of appeals’ decision affirming 

both Robinson’s convictions and the circuit court’s denial of his postconviction motion. State 
v. Robinson, No. 2019AP1313, 2022 WL 4137711 (Wis. Ct. App. Sept. 13, 2022). 
    The state charged Robinson with five counts of delivering heroin, all as a second or 
subsequent offense. Id. *1. A jury convicted Robinson on all charges. Id. The circuit court 
sentenced Robinson to 20 years of initial confinement followed by 11 years of extended 
supervision. Id. Represented by Paul G. Bonneson, Robinson moved for postconviction relief, 
arguing that trial counsel, Patrick Flanagan, was ineffective because he didn’t raise a third-party 
perpetrator defense or argue that Robinson’s incriminating statement to police was involuntary. 

See id. The circuit court denied the motion. Id.                          
    Bonneson filed a no-merit report seeking to withdraw as appellate counsel. Id. The state 
court of appeals determined that there was no arguable merit to a claim that the evidence was 
insufficient to support the verdict. Id. Further, the state court of appeals determined that there 
would be no arguable merit to a claim that the trial court’s evidentiary ruling limiting testimony 
about Robinson’s twin brother, Harold Robinson, was erroneous. Id. *2. The state court of 
appeals also determined that there would be no arguable merit to a claim that Flanagan 
provided ineffective assistance by failing to argue that Harold Robinson committed some or all 

of the offenses. Id. Finally, the state court of appeals determined that the other issues raised by 
Bonneson and Robinson lacked arguable merit. Id. *2–3.                    
    On November 25, 2022, the state supreme court dismissed Robinson’s petition for 
review. State v. Robinson, 2022 WI 107. Robinson didn’t seek review in the U.S. Supreme Court. 
Dkt. 9 at 3.                                                              
    Under the prison mailbox rule, Robinson filed his federal petition on September 13, 

2023. Dkt. 1 at 20. This court ordered Robinson to amend his petition because it didn’t 
substantially follow the court’s form for § 2254 cases. Dkt. 2.           
    Robinson  filed  an  amended  petition  using  the  court’s  form  and  a  supporting 
memorandum. Dkt. 9 and Dkt. 10. In his amended petition, Robinson brings four claims for 
relief. See Dkt. 9 at 5, 7–8, 10. Robinson raises a fifth claim in the supporting memorandum. 
See Dkt. 10 at 2–4.                                                       

                           ANALYSIS                                      
A.  Habeas review standards                                               

    Federal courts may grant habeas relief only if the state court’s denial of relief “was 
contrary to, or involved an unreasonable application of, clearly established Federal law, as 
determined by the Supreme Court of the United States” or “was based on an unreasonable 
determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d)(1)–(2). 
A state court’s adjudication is “contrary to” clearly established Supreme Court precedent if the 
court either: (1) reaches a conclusion on a question of law opposite to that reached by the 
Supreme Court; or (2) decides a case differently than the Supreme Court has on materially 
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412–13 (2000). Under § 2254(d)(1)’s 

“unreasonable application” clause, courts may grant the writ if the state court identifies the 
correct governing legal principle from the Supreme Court’s decisions but unreasonably applies 
that principle to the facts of the case. Id. at 413. For the application to be unreasonable, a state 
prisoner “must show that the state court’s decision is so obviously wrong that its error lies 
beyond any possibility for fairminded disagreement.” Shinn v. Kayer, 141 S. Ct. 517, 523 
(2020) (per curiam). Similarly, for a state court’s factual finding to be unreasonable, there must 

be no possibility of reasonable agreement with the finding. See Brumfield v. Cain, 576 U.S. 305, 
313–14 (2015); Wood v. Allen, 558 U.S. 290, 301–02 (2010).                
     When applying § 2254(d), courts look to “the last reasoned state-court decision to 
decide the merits of the case, even if the state’s supreme court then denied discretionary 
review.” See Dassey v. Dittmann, 877 F.3d 297, 302 (7th Cir. 2017) (en banc); see also Wilson v. 
Sellers, 584 U.S. 122, 125 (2018). Review under § 2254(d) is limited to the state-court record. 
See Shoop v. Twyford, 142 S. Ct. 2037, 2043–44 (2022); Dunn v. Neal, 44 F.4th 696, 702 (7th 
Cir. 2022). The petitioner bears the burden to show an error under § 2254(d), and the burden 

of proof under § 2254 generally. See Westray v. Brookhart, 36 F.4th 737, 746 (7th Cir. 2022); 
Quintana v. Chandler, 723 F.3d 849, 854 (7th Cir. 2013).                  
    Claims of ineffective assistance of counsel are governed by the two-part test in Strickland 
v. Washington, 466 U.S. 668 (1984). To establish that counsel provided ineffective assistance, 
Robinson  must  show  that  counsel’s  performance  was  deficient  and  that  the  deficient 
performance  prejudiced  his  defense.  466  U.S.  at  687.  To  prove  deficient  performance, 
Robinson  must  show  that  counsel’s  performance  “fell  below  an  objective  standard  of 
reasonableness” as measured by prevailing professional norms. Id. at 688. Courts must “indulge 

a  strong  presumption  that  counsel’s  conduct  falls  within  the  wide  range  of  reasonable 
professional assistance.” Id. at 689. To prove prejudice, Robinson must show “a reasonable 
probability that, but for counsel’s unprofessional errors, the result of the proceeding would 
have been different.” Id. at 694.                                         
    Strickland governs a claim of ineffective assistance of appellate counsel. Makiel v. Butler, 
782 F.3d 882, 897 (7th Cir. 2015). To prevail, Robinson “must show that appellate counsel 

failed to raise an obvious issue that is stronger than the other claims raised [in the no-merit 
report] and that prejudice flowed from that failure.” Johnson v. Thurmer, 624 F.3d 786, 793 (7th 
Cir. 2010). Prejudice exists if there is a reasonable probability that the issue that appellate 
counsel “failed to raise would have altered the outcome of the appeal, had it been raised.” Id.; 
see also Ramirez v. Tegels, 963 F.3d 604, 613 (7th Cir. 2020).            
    It is “all the more difficult” to prevail on a Strickland claim under § 2254(d). Harrington 
v. Richter, 562 U.S. 86, 105 (2011). Because the standards that Strickland and § 2254(d) create 
are both “highly deferential,” review is “doubly” so when the two apply in tandem. Id. The 

question is not whether counsel’s actions were reasonable, but rather, “whether there is any 
reasonable argument that counsel satisfied Strickland’s deferential standard.” Id. 
    Section 2254 petitions must meet “heightened pleading requirements.” McFarland v. 
Scott, 512 U.S. 849, 856 (1994). “The § 2254 Rules . . . mandate ‘fact pleading’ as opposed to 
‘notice pleading,’ as authorized under Federal Rule of Civil Procedure 8(a).” Borden v. Allen, 
646 F.3d 785, 810 (11th Cir. 2011). I need not “need not hold an evidentiary hearing for 
vague or conclusory allegations.” Mayberry v. Dittmann, 904 F.3d 525, 532 (7th Cir. 2018). 
B.  Claim 2                                                               

    Robinson contends that the state circuit court lacked “jurisdiction” because an ATF 
agent was involved in the investigation leading to his arrest, meaning that the “arrest and 
investigation were both federal in nature.” Dkt. 9 at 7; see also Dkt. 10 at 3 (citing Byars v. 
United States, 273 U.S. 28 (1927)). Robinson further contends that the state sought to deprive 
him of the right to challenge venue so that his prosecution wouldn’t be held in a forum where 
“a de facto double standard developed.” Dkt. 9 at 7.                      
    State authorities’ collaboration with a federal agent in a drug investigation that leads to 

state criminal charges does not deprive a state trial court of jurisdiction over the state charges. 
Cf. United States v. Johnson, 65 F.4th 932, 938 (7th Cir. 2023) (noting that “state and federal 
prosecutors consult and cooperate with one another all the time”); United States v. Moore, 543 
F.3d  891,  897  (7th  Cir.  2008)  (“[I]t  is  well-established  that  under  principles  of  dual 
sovereignty, both the state and the federal government may sentence a defendant for actions 
criminal under both state and federal law.”). Byars held only that, “when a federal officer 
participates officially with state officers in a search, the constitutionality of that search is to be 
tested as though it were an official federal search.” United States v. Carter, 592 F.2d 402, 406 

(7th Cir. 1979). Byars doesn’t apply to Robinson’s “jurisdictional” claim. Robinson’s other 
contention that the state sought to deprive him of the right to challenge venue is too conclusory 
and unclear to support habeas relief. Claim 2 is plainly insufficient.    
C. Claim 3                                                                
    Robinson contends that Flanagan and Bonneson provided ineffective assistance of 
counsel. Dkt. 9 at 8. I take Robinson to assert that the basis of this claim is that Flanagan and 
Bonneson failed to raise the substantive issues in claims 1 through 4. See Dkt. 10. Claim 2 is 

meritless, so counsel’s failure to raise it doesn’t support claim 3. See Warren v. Baenen, 712 F.3d 
1090, 1105–06 (7th Cir. 2013).                                            
    Claims 1 and 4 are the bases for claim 3. In claim 1, Robinson asserts a due process 
violation based on the circuit court’s failure to order the state to disclose “critical documents” 
related to state or federal agents’ use of an unknown black man and a confidential informant 
to set up Robinson to sell heroin. Dkt. 9 at 5. But Robinson’s initial trial counsel, Kavion 
Yazdani, unsuccessfully moved to compel this information. See Dkt. 9-2. Flanagan had a 
reasonable basis to conclude that the circuit court would have denied a new motion raising the 

same issue. See United States v. Lawson, 947 F.2d 849, 853 (7th Cir. 1991) (“[C]ounsel does 
not render ineffective assistance by failing to pursue arguments that are clearly destined to 
prove unsuccessful[.]” (citation omitted)).                               
    Bonneson could have pursued that issue on appeal, arguing that the state’s failure to 
provide that information deprived Robinson of his right to present a complete defense. See Dkt. 
9-2 at 2. But the cases in which the Supreme Court has “invoked this principle dealt with the 
exclusion of evidence, or the testimony of defense witnesses.” Gilmore v. Taylor, 508 U.S. 333, 
343 (1993). By contrast, Robinson hasn’t specifically identified any “critical documents” that 

Flanagan proffered but that the circuit court excluded regarding agents’ use of unidentified 
individuals to set up him to sell heroin. Robinson just assumes that those documents existed. 
Nor has Robinson alleged that the circuit court excluded any trial testimony about agents’ use 
of unidentified individuals to set up him to sell heroin. Robinson may be faulting Bonneson 
for not raising this claim under Brady v. Maryland, 373 U.S. 83 (1963). But Robinson doesn’t 
allege that trial counsel preserved that claim and, “[i]n most cases, an unpreserved trial error 
will not be a plainly stronger ground for appeal than preserved errors.” Davila v. Davis, 582 
U.S. 521, 533 (2017). Bonneson had a reasonable basis to not pursue claim 1 on appeal. 

    That leaves claim 4. Robinson asserts Fourth and Sixth Amendment violations because 
affidavits by federal agents supporting his arrest “were sealed and replaced” by a state law 
enforcement officer’s affidavit. See Dkt. 9 at 10. The Fourth Amendment guards against 
unreasonable  searches  and  seizures  and,  therefore,  doesn’t  directly  apply  to  this  alleged 
deprivation. But I will assume that Robinson meant to assert a due process claim along with 
his Sixth Amendment claim. Cf. Holmes v. South Carolina, 547 U.S. 319, 319 (2006) (“Whether 
rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory 

Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees 
criminal defendants a meaningful opportunity to present a complete defense.”); Anderson v. 
Sternes, 243 F.3d 1049, 1053 (7th Cir. 2001) (habeas relief is appropriate for a state court 
evidentiary error if the ruling was so prejudicial that it compromised the petitioner’s due process 
right to a fundamentally fair trial).                                     
    But, as with claim 1, it’s clear that Flangan could not have proffered the affidavits that 
Robinson faults the state for failing to disclose. It’s doubtful that the right to a complete defense 
is the appropriate vehicle to pursue this claim 4. Again, those cases deal with “the exclusion of 

evidence or the testimony of defense witnesses.” Hinkle v. Neal, 51 F.4th 234, 243 (7th 
Cir. 2022) (alterations adopted) (emphasis in original). In any case, Robinson would have to 
show that “the proffered evidence was [] essential to [his] ability to present a defense.” See id. 
Because Robinson doesn’t discuss the affidavits’ contents, it would be pure speculation to 
conclude that they were essential to his ability to present a complete defense. Cf. id. at 245. By 
the same token, there’s no basis to infer that the affidavits contained material exculpatory or 
impeaching evidence. Cf. Brady, 373 U.S. at 87; Carvajal v. Dominguez, 542 F.3d 561, 566–67 
(7th Cir. 2008). Furthermore, Flanagan was able to cross-examine the officers involved in the 

drug operation who testified at trial, and Robinson testified in his own defense. Cf. Robinson, 
2022 WL 4137711, at *1–2. And the state presented strong evidence against Robinson, further 
undermining the contention that his conviction was fundamentally unfair. Cf. id. (referring to 
the “other evidence against Robinson,” which included an agent’s testimony about his multiple 
drug purchases from him, videotapes and audio recordings of drug sales, and heroin and drug 
paraphernalia found in his home). Flanagan and Bonneson had a reasonable basis to believe 
that neither due process nor Robinson’s right to a complete defense was violated. Claim 3 lacks 

merit.                                                                    
D. Claim 5                                                                
    Robinson contends that the circuit court’s evidentiary ruling limiting testimony about 
his brother, Harold Robinson, deprived him of his right to present a complete defense. 
See Dkt. 10 at 2–5. “While the Constitution [] prohibits the exclusion of defense evidence 
under rules that serve no legitimate purpose or that are disproportionate to the ends that they 
are asserted to promote, well-established rules of evidence permit trial judges to exclude 

evidence if its probative value is outweighed by certain other factors such as unfair prejudice, 
confusion of the issues, or potential to mislead the jury.” Hinkle, 51 F.4th at 241. “When 
making these evidentiary decisions, the Constitution leaves trial judges wide latitude to exclude 
evidence in accordance with these deep-rooted evidentiary rules.” Id. “If evidence is excluded 
as  unfairly  prejudicial,  confusing,  or  potentially  misleading—a  decision  reviewed 
deferentially—that  exclusion  cannot  violate  the  right  to  present  a  complete  defense.” 
Id. at 241–42.                                                            
    Robinson argued in the circuit court that he should be able to ask about errors in police 

reports and other documents that referred to Harold Robinson to show that the state’s 
investigation was “sloppy.” Robinson, 2022 WL 4137711, at *2. The state objected, arguing 
that mentioning Harold Robinson could cause the jury to believe that he, not Robinson, 
committed the crimes. Id. The circuit court ruled that Flanagan could ask about the errors and 
refer to Harold Robinson, but prohibited any mention that he was a twin or shared the same 
birth date as Robinson. Id. This discretionary evidentiary ruling sought to balance Robinson’s 
strategy to show that the state’s investigation was unreliable with the state’s interest in avoiding 
misleading or confusing the jury. Cf. id. (noting that the circuit court “properly exercised its 

discretion . . . based on accepted legal standards and in accord with the facts of the case”). The 
circuit court admitted much of the evidence that Robinson proffered, and the evidence that it 
didn’t admit risked misleading or confusing the jury. The state court of appeals reasonably 
rejected this claim 5.                                                    
E.  Evidentiary hearing                                                   
    No evidentiary hearing is warranted because, as my analysis shows, “the record . . . 
precludes habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007); see also Dittmann, 

904 F.3d at 532. I have resolved the issues raised in the amended petition “by reference to the 
state court record.” Schriro, 550 U.S. at 474.                            
F.  Certificate of appealability                                          
    Because Robinson seeks relief under § 2254, he may appeal this order only if he obtains 
a certificate of appealability. I may issue a certificate of appealability only if Robinson makes 
“a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To 
obtain a certificate of appealability, Robinson “must demonstrate that reasonable jurists would 
find [my] assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 

529 U.S. 473, 474 (2000). Because Robinson cannot make this showing, I will deny a 
certificate of appealability.                                             
                       ORDER                                        
IT IS ORDERED that:                                                  
1.  Petitioner Harry A. Robinson’s amended habeas petition, Dkt. 9, is DENIED. 
2.  A certificate of appealability is DENIED.                        
3.  The clerk is directed to enter judgment and send petitioner copies of this order and 
 the judgment.                                                      
Entered September 5, 2024.                                           
                        BY THE COURT:                               

                        /s/                                         
                        ________________________________________    
                        JAMES D. PETERSON                           
                        District Judge