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Full Opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TYRONE STALLINGS,
Petitioner, Case No. 22-CV-161-JPS
v.
MICHAEL GIERACH,
ORDER
Respondent.
1. INTRODUCTION
On January 9, 2023, Petitioner Tyrone Stallings (“Petitioner” or
“Stallings”) filed a corrected, amended petition to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2254 pursuant to the Court’s order
screening his original petition. ECF Nos. 7, 11. Respondent Michael Gierach
(“Respondent”), see infra note 4, then moved to dismiss two of Petitioner’s
three grounds for relief. ECF No. 16. The Court granted in part and denied
in part the motion, concluding that Petitioner’s “Brady [v. Maryland, 373 U.S.
83 (1963) (hereinafter, “Brady”] claim and . . . Sixth Amendment
[Confrontation Clause] claim”—Grounds Four and Seven, respectively—
would proceed to merits briefing, while Ground One was dismissed with
prejudice. ECF No. 25 at 35; ECF No. 13 at 1–2 (recounting remaining
grounds for relief set forth in corrected, amended petition following
screening of original petition and referring to those remaining grounds as
“Ground One,” “Ground Four,” and “Ground Seven”).
This case is now ripe for a merits analysis on those aforementioned
claims. For the reasons discussed herein, the Court will deny the amended
§ 2254 petition and dismiss this case with prejudice.
2. BACKGROUND
2.1 The Facts Giving Rise to Petitioner’s Criminal Case1
This petition arises out of Petitioner’s conviction in Milwaukee
County Circuit Court Case No. 2014CF002164.2 Stallings was therein found
guilty at trial of three offenses: (1) possession of a firearm by a felon, with a
repeater modifier; (2) possession of a short-barreled shotgun/rifle, with a
repeater modifier; and (3) possession with intent to deliver a controlled
substance—in this case, THC—with second/subsequent offense and use of
a dangerous weapon modifiers.
In May 2014, an officer of the Milwaukee Police Department
(“MPD”) applied for a no-knock warrant to search Stallings’s alleged
residence at 1134 S. 19th Street in Milwaukee (the “19th Street Residence”)
for items used in the commission of or constituting evidence of criminal
activity, in particular (1) being a felon in possession of a firearm and
(2) possession with intent to deliver cocaine. ECF No. 1-1 at 3.3 The officer
1The following factual background is taken largely from the Court’s order,
ECF No. 25, on Respondent’s motion to dismiss, ECF No. 16. For brevity, the Court
omits citations to that order and internal citations from that order, with some
exceptions. Citations are included in full for factual and procedural background
new to this Order.
2See State of Wisconsin v. Tyrone Stallings, No. 2014CF002164 (Milwaukee
Cnty. Cir. Ct. 2014), available at
https://wcca.wicourts.gov/caseDetail.html?caseNo=2014CF002164&countyNo=40
&index=0 (last visited Mar. 25, 2024) (hereinafter, “State Court Docket”).
3Although Petitioner neglected to attach these exhibits to his amended
petition at ECF No. 11, the Court nevertheless cites to and relies on those exhibits
submitted an affidavit in support of the warrant application, wherein he
indicated that the application was “based upon information . . . derived
from a reliable registered confidential informant [“CI”] . . . .”
According to the affidavit, the CI represented that he or she had been
inside the 19th Street Residence and therein observed a firearm “belonging
to an individual known to the [CI] only as ‘TY,’” whom the CI believed was
a convicted felon. The CI further stated that he or she “observed TY to
engage in the distribution of cocaine” from the 19th Street Residence. When
shown a booking photo of Stallings, the CI identified the person in the
photo as the same “TY.”
The officer independently corroborated Stallings’s status as a felon.
The officer also independently corroborated that Stallings listed the 19th
Street Residence as his home address with the Wisconsin Department of
Corrections. A court commissioner found that the affidavit established
probable cause that evidence connected with a crime would be found at the
19th Street Residence and authorized the no-knock search warrant.
On May 20, 2014, MPD officers and agents of the Bureau of Alcohol,
Tobacco, Firearms, and Explosives (“ATF”) executed the warrant. State v.
Stallings, No. 2018AP982-CRNM, 2021 WL 8534196, at *1 (Wis. Ct. App.
Apr. 13, 2021). Officers found marijuana, marijuana paraphernalia, a
sawed-off shotgun and shells, and mail addressed to Stallings at the 19th
Street Residence.
Officers also thereafter observed Stallings leave the 19th Street
Residence. MPD Officer Laura Captain (“Captain”) initiated a traffic stop
as attached to the original petition, ECF No. 1, in determining the factual
background underlying the petition.
of Stallings and arrested him. Stallings later testified that, while in the back
of Captain’s squad car, he stated: “I am going to need a lawyer.” Stallings,
2021 WL 8534196, at *3. He also testified that he heard Captain tell other
officers that Stallings had requested an attorney. After his arrest, Stallings
was interviewed by other officers, during which time he admitted that the
marijuana was his, that he had been selling it, and that he had recently
bought the gun. Id. at *1.
2.2 Procedural Background
2.2.1 Pre-Trial & Trial Stage
Stallings unsuccessfully moved to suppress the drugs and guns
recovered in the search, arguing that the warrant application and
supporting affidavit did not support a finding of probable cause. Stallings,
2021 WL 8534196, at *2. Later, Stallings filed a motion in limine challenging
the admissibility of statements he made after allegedly invoking his right
to an attorney in Captain’s squad car. Stallings, 2021 WL 8534196, at *3. A
hearing on the motion was held in September 2015. Id.; ECF No. 27-5.
Stallings testified at the hearing that he stated from the back of
Captain’s squad car, two or three times, that he was “going to need a
lawyer” and that Captain responded “well, yeah, you going to need a damn
good lawyer for what they found in your house . . . .” ECF No. 27-5 at 48,
65, 70. He also testified that he believed that the officers who later
interrogated him “already knew” he had requested a lawyer because he
believed Captain had told them. Id. at 63.
Captain testified that her squad car was equipped with a recording
system that was activated when someone is in the backseat. At the close of
Captain’s testimony, defense counsel stated that she wanted to obtain and
review the recording before proceeding. “The State told the trial court that,
having learned at the prior hearing about the possibility of some
recording,” the prosecutor inquired with MPD about the recording and
“was told that any such recordings were retained for 120 days and then
disposed of.” Stallings, 2021 WL 8534196, at *3. Captain also testified that
she “d[id]n’t remember” whether Stallings asked for an attorney while in
the back of her squad car. ECF No. 27-5 at 30. If he had done so, she testified
that her normal practice would be to “notify the investigating officer of the
request for a lawyer,” which she did not recall having done. Id. at 33.
One of the officers who later interrogated Stallings also testified at
the hearing. ECF No. 27-5 at 72. He testified that Captain never informed
him that Stallings had requested a lawyer and that if she had, he would
have documented it in his report. Id. at 76.
In an oral ruling, the trial court rejected Stallings’s version of events
with respect to his alleged backseat invocation of counsel. ECF No. 27-15 at
4. The court concluded that Stallings “never told Officer Captain that he
wanted an attorney or wanted to speak with an attorney.” Id. The court
accordingly that found Stallings’s statements to police were admissible and
denied the motion in limine.
Stallings’s trial began in March 2016. ECF No. 27-8. The jury heard
testimony from Bodo Gajevic (“Gajevic”), a narcotics special agent whose
“involvement in th[e] case started” with a review of the case file. ECF No.
27-11 at 45–46, 50. On direct examination, the State mentioned the shotgun
found in the search of the 19th Street Residence. Id. at 69. Gajevic discussed
the shotgun’s relevance to “the conclusion that th[e] amount of marijuana
[found] [wa]s consistent with intent to distribute.” Id. at 71–72. On cross
examination, Stallings’s trial counsel, Attorney Eric Hailstock (“Attorney
Hailstock”), asked Gajevic if, from his review of the case file, anyone had
“see[n] [Petitioner] with a gun,” to which Gajevic responded that he
believed so. Id. at 83–84. To this, Attorney Hailstock asked “Who?” Id. at 84.
A sidebar was then held outside of the presence of the jury. The State
“point[ed] out . . . a portion of the affidavit for the search warrant . . . that,
in essence, talks about information that a [CI] gave law enforcement, and
that the [CI] reported observing a firearm and . . . knew that [Stallings] was
a convicted felon . . . .” Id. at 86–87. The State noted that it had already
moved the affidavit in support of the warrant application into evidence
earlier in the trial. Id. at 87; ECF No. 27-9 at 111 (trial transcript identifying
search warrant as trial exhibit No. 44 and documenting that exhibit’s receipt
into evidence); ECF No. 27-11 at 87 (trial transcript confirming that affidavit
in support of search warrant was included within trial exhibit No. 44).
Neither party had moved to publish the warrant materials to the jury,
however. ECF No. 27-9 at 111.
Upon inquiry by the court, Attorney Hailstock stated that his
strategy for this line of questioning was to “obtain the name of the [CI] . . .
[who] had asserted [Stallings] being in possession of the firearm.” ECF No.
27-11 at 90–91. The Court asked Attorney Hailstock if he wished to proceed
with that strategy, understanding that the State was asserting a privilege
not to disclose the CI’s identity and understanding that Gajevic would not
be made to disclose the CI’s identity. Id. at 91–92. Attorney Hailstock
asserted that he wished to continue with the line of questioning,
anticipating that Gajevic would answer the question generally with
“confidential informant.” Id. at 95. Attorney Hailstock informed the court
that he wanted to delve into the CI’s credibility and motivation for
informing; for example, if he or she was addicted to drugs or being paid to
be a CI. Id. at 96. The court again expressed concern with respect to this
strategy. Id. at 97 (“[W]hat is the strategic benefit [of] . . . evidence being
presented to the jury, that the [CI] reported that [Petitioner] was the
individual in possession of the firearm at the residence?”); id. at 100 (“I still
have some concern [because] [s]o far the State has not presented a [CI], a
witness . . . . [T]he State has not presented any evidence that anyone,
including a [CI], claimed to have seen [Petitioner] in possession of a firearm
or that the [CI] claimed that [Petitioner] was the individual in possession of
a firearm at the residence . . . .”). The court then stood in recess until the
following morning.
The following morning, before the jury had been reconvened,
Attorney Hailstock informed the court that he no longer wished to pursue
that line of questioning and successfully moved for the line of
questioning—“Q: And to your knowledge did anyone see him with a
gun . . . ? A: I believe so. Q: . . . Who?”—to be stricken from the record. ECF
No. 27-12 at 4–8. Upon reconvening the jury, the court instructed the jury
to entirely disregard that portion of cross examination. Id. at 13–15.
At the conclusion of trial, the jury found Stallings guilty of all three
offenses charged. Stallings, 2021 WL 8534196, at *1. The trial court sentenced
him to a total of thirteen years in state prison. Id.
2.2.2 Post-Conviction Stage
In June 2018, Stallings’s appellate counsel filed a no-merit report
pursuant to Anders v. California, 386 U.S. 738 (1967) and Wis. Stat. § 809.32
and moved to withdraw. The no-merit report addressed whether Stallings’s
due process rights under Brady were violated by the State’s failure to retain
and turn over Captain’s squad audio recording which, according to
Stallings’s testimony at the motion in limine hearing, captured Stallings’s
invocation of his right to an attorney. Stallings’s appellate counsel
concluded that this argument lacked merit.
On April 13, 2021, the Wisconsin Court of Appeals concluded that
Stallings’s case presented no issues of arguable merit and affirmed the
judgment below. With respect to Ground Four, the trial court had
concluded as a factual matter that Stallings never invoked his right to
counsel in Captain’s squad car. Stallings, 2021 WL 8534196, at *4. In other
words, the trial court did not believe Stallings’s version of events with
respect to his alleged invocation of counsel. The Wisconsin Court of
Appeals concluded that that factual finding was not clearly erroneous. Id.
Moreover, it concluded that the factual finding was fatal to Ground Four
because “if Stallings did not invoke the right to counsel, then any recording
from Captain’s squad was, at best, potentially useful or potentially
exculpatory evidence, not apparently exculpatory evidence.” Id. “This
means that Stallings had to show the police acted in bad faith when they
destroyed the recording, but the only evidence of record is that the tape was
destroyed in accordance with a routine department policy.” Id. (citing State
v. Weissinger, 851 N.W.2d 780, ¶ 13 n.4 (Wis. Ct. App. 2014)).
With respect to Ground Seven, the Wisconsin Court of Appeals
recounted that “the entirety of the search warrant and the affidavit had
been introduced as an exhibit” during trial. Id. at *9. The Wisconsin Court
of Appeals disagreed with Stallings, however, that his Sixth Amendment
confrontation right was implicated because “the confrontation clause
applies only to testimonial hearsay statements and is not implicated if the
statements are nontestimonial or not hearsay.” Id. (citing State v. Nieves, 897
N.W.2d 363, ¶¶ 29, 36 (Wis. 2017) and Crawford v. Washington, 541 U.S. 36,
59 n.9 (2004)). “Here,” the court wrote, “the [CI’s] statements were not
hearsay because they were not offered for the truth of the matter—that is,
they were not offered to prove that Stallings was a felon, or that he
possessed a short barreled shotgun, or that he had possessed marijuana.”
Id. (citation omitted). Instead, “[t]he warrant materials were introduced
only as proof [that] police had entered the residence pursuant to a warrant.”
Id. (also noting that “[t]he State did not expressly reference the [CI’s]
statements within the affidavit, and the warrant materials were not
published to the jury”).
In May 2021, Stallings filed a Petition for Review of the appellate
court’s decision with the Wisconsin Supreme Court. See Wisconsin Court of
Appeals Case No. 2018AP000982, available at https://wscca.wicourts.gov
(last visited Mar. 25, 2024). The Wisconsin Supreme Court denied the
Petition for Review without opinion in August 2021. State v. Stallings, No.
2018AP982-CRNM, 2021 WL 9772169 (Table) (Wis. August 11, 2021).
Petitioner is now incarcerated at Redgranite Correctional Institution
under Warden Michael Gierach.4 His maximum discharge date is May 10,
2045, with an extended supervision commencement date of August 23,
2030. Offender Locator, https://appsdoc.wi.gov/lop/details/detail (last
visited Mar. 25, 2024).
3. STANDARD OF REVIEW ON HABEAS
State criminal convictions are generally considered final. Review
may be had in federal court only on limited grounds. To obtain habeas relief
from a state conviction, 28 U.S.C. § 2254(d)(1) (as amended by the
4Warden Michael Gierach is accordingly the appropriate Respondent in
this action. The Court will instruct the Clerk of Court to replace Dan Cromwell
with Michael Gierach as Respondent in this action. See Rule 2(a) of the Rules
Governing 2254 Cases.
Antiterrorism and Effective Death Penalty Act (“AEDPA”)) requires the
petitioner to show that the state court’s decision on the merits of his
constitutional claim was contrary to, or involved an unreasonable
application of, clearly established federal law as determined by the United
States Supreme Court. 28 U.S.C. § 2254(d)(1); Brown v. Payton, 544 U.S. 133,
141 (2005). 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).
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, 544 U.S. at 141 (citing Williams v. Taylor, 529 U.S.
362, 405 (2000) and Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)).
Similarly, 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).
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) (citing Harrington v. Richter, 562 U.S. 86, 103
(2011)). It is not enough for the petitioner to prove the state courts were
wrong; he must also prove they acted unreasonably. Harrington, 562 U.S. at
101; 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 v. Woodall, 572
U.S. 415, 419 (2014)).
Indeed, the 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). Further, when a state court applies
general constitutional standards, it is afforded even more latitude under the
AEDPA in reaching decisions based on those standards. Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009); Yarborough v. Alvarado, 541 U.S. 652, 664
(2004) (“[E]valuating whether a rule application was unreasonable requires
considering the rule’s specificity. The more general the rule, the more
leeway courts have in reaching outcomes in case-by-case determinations.”)
(citing Wright v. Wrest, 505 U.S. 277, 308–09 (1992) (Kennedy, J.,
concurring)).
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, as amended by AEDPA, § 2254(d) stops just short of “imposing a
complete bar on federal-court relitigation of claims already rejected in state
proceedings.” Id. (citing Felker v. Turpin, 518 U.S. 651, 664 (1996)). 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, 17 (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).
A federal court also reviews a claim de novo where the state courts
failed to “reach the merits” of the federal constitutional claim entirely. Cone
v. Bell, 556 U.S. 449, 472 (2009) (“Because the Tennessee courts did not reach
the merits of Cone’s Brady claim, federal habeas review is not subject to the
deferential standard that applies under AEDPA to ‘any claim that was
adjudicated on the merits in State court proceedings.’ 28 U.S.C. § 2254(d).
Instead, the claim is reviewed de novo.”) (citing Rompilla v. Beard, 545 U.S.
374, 390 (2005) and Wiggins v. Smith, 539 U.S. 510, 534 (2003)).
4. LAW & ANALYSIS
4.1 Ground Four
As noted, Petitioner alleges in Ground Four that the State failed to
retain and/or turn over to the defense potentially exculpatory evidence in
violation of Brady and Petitioner’s Fourteenth Amendment due process
rights. Petitioner specifically asserts that the State failed to turn over the
recording from Captain’s squad car, which he argues would have proved
that he made a request for counsel after being detained, which he claims
would have rendered his later inculpatory statements inadmissible. ECF
No. 7 at 5 (citing ECF No. 1 at 14–17); ECF No. 27 at 3 (“Petitioner argued
that his rights under Brady . . . were violated when he failed to receive in
discovery a copy of a video of statements he made while in a squad car that
had been destroyed after 120 days as a matter of course.”). For the reasons
discussed herein, the Court will deny Ground Four.
As recounted above, the trial court made the factual finding that
Stallings never invoked his right to counsel in Captain’s squad car, and the
Wisconsin Court of Appeals affirmed, concluding that this factual finding
was not clearly erroneous. Respondent contends that the Wisconsin Court
of Appeals’ rejection of this claim neither ran contrary to clearly established
Supreme Court precedent nor was based on any unreasonable
determination of the facts then before the court. ECF No. 27 at 4. The Court
agrees.
Petitioner merely continues to argue that the squad car recording
would have proved that he requested counsel. ECF No. 29 at 5. In other
words, he seems to challenge the trial court’s factual finding that he did not
in fact invoke his right to counsel in Captain’s squad car and the Wisconsin
Court of Appeals’ conclusion that that factual finding was not clearly
erroneous. But he makes little in the way of actual argument as to why this
Court should accept that challenge; he simply, and baldly, reiterates his
version of events, which version the state courts declined to accept.
As noted supra Section 3, for purposes of federal habeas review,
“[t]he state court’s factual determinations are cloaked with a presumption
of correctness, and the presumption can be overcome only by clear and
convincing evidence.” McManus v. Neal, 779 F.3d 634, 649 (7th Cir. 2015)
(citing 28 U.S.C. § 2254(e(1)). The reviewing court must therefore be
“objectively convinced that the record before the state court does not
support the state court’s findings in question.” Id. (quoting Ben-Yisrayl v.
Davis, 431 F.3d 1043, 1048 (7th Cir. 2005) and citing Ward v. Sternes, 334 F.3d
696, 704 (7th Cir. 2003) and Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.
2004)). This presumption of correctness also extends to the state court’s
credibility determinations. Coleman v. Hardy, 628 F.3d 314, 320 (7th Cir.
2010) (citing § 2254(e)(1) and Araujo v. Chandler, 435 F.3d 678, 682 (7th Cir.
2005)). “Credibility determinations made in the trial court are notoriously
difficult to overturn under § 2254(d)(2).” Coleman v. Hardy, 690 F.3d 811, 817
(7th Cir. 2012) (citing Rice v. Collins, 546 U.S. 333, 341–42 (2006) and Morgan
v. Hardy, 662 F.3d 790, 799 (7th Cir. 2011)).
Petitioner has not met his burden of rebutting the state courts’ factual
finding with clear and convincing evidence. He disagrees with the trial
court’s rejection of his version of events and with the Wisconsin Court of
Appeals’ affirmance of that rejection, but he gives the Court little to no
reason to conclude that the state courts’ factual determinations are
unsupported by the state court record. He challenges Captain’s credibility,
pointing out that she was “somehow [able] to remember what the other
detectives told her, but cannot remember if” Stallings told her that he
wanted an attorney. ECF No. 11 at 5–6. But this attack on Captain’s
credibility is not enough for this Court to reject the state court’s factual
determination. See Marshall v. Lonberger, 459 U.S. 422, 434 (1983) (federal
courts on habeas review have “no license to redetermine credibility of
witnesses whose demeanor has been observed by the state trial court, but
not by them”).
Nor can the Court conclude that the Wisconsin Court of Appeals, in
affirming the trial court’s rejection of Petitioner’s Brady challenge, ran
contrary to or unreasonably applied clearly established Supreme Court
precedent. “A Brady violation occurs when the government fails to disclose
evidence materially favorable to the accused.” Youngblood v. West Virginia,
547 U.S. 867, 869 (2006) (citing Brady, 373 U.S. at 87). “Such evidence is
material ‘if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been
different.’” Id. at 870 (quoting Strickler v. Greene, 527 U.S. 263, 280 (1999)).
However, “[t]here is a difference ‘between those situations in which
the police fail to disclose to the defendant evidence that it knows to be
material and exculpatory, and those situations in which police simply fail
to preserve potentially exculpatory evidence.’” U.S. v. Kimoto, 588 F.3d 464,
474 (7th Cir. 2009) (quoting United States v. Chaparro-Alcantara, 226 F.3d 616,
623 (7th Cir. 2000)) (emphasis added). “[T]he good or bad faith of the State
[is] irrelevant when the State fails to disclose to the defendant material
exculpatory evidence.” Arizona v. Youngblood, 488 U.S. 51, 57 (1988); United
States v. Holly, 940 F.3d 995, 1001 (7th Cir. 2019) (“Brady requires that the
government disclose evidence materially favorable to the defendant
‘irrespective of the good faith or bad faith of the prosecution.’”) (quoting
Brady, 373 U.S. at 87). But “the police’s failure to preserve potentially useful
evidence does not constitute a denial of due process unless the defendant
can show that the police acted in bad faith.” Holly, 940 F.3d at 1001 (citing
Arizona, 488 U.S. at 58) (emphasis added). Under Arizona, with respect to
merely potentially exculpatory evidence, the defendant must show “proof
of animus or a conscious effort to suppress exculpatory evidence” that the
“official[] . . . subjective[ly] k[new] . . . had exculpatory value.” Id. (citing
United States v. Cherry, 920 F.3d 1126, 1140 (7th Cir. 2019)).
The Wisconsin Court of Appeals confirmed that the squad audio
recording “was, at best, potentially useful or potentially exculpatory
evidence” governed by Arizona, as opposed to “apparently exculpatory
evidence” governed by Brady, because the trial court had found that
Stallings never actually invoked his right to counsel in the squad car, which
finding was not clearly erroneous. Stallings, 2021 WL 8534196, at *3–4. That
conclusion was not legally erroneous. See Holly, 940 F.3d at 1002 (lost video
was not shown to have apparent material exculpatory value—i.e., claim was
governed by Arizona as opposed to Brady—because trial court found that
the video would not show what the defendant claimed it would show,
which factual finding was not clearly erroneous); United States v. Bender, __
F.4th __, 2024 WL 981438, at *3 (7th Cir. 2024) (failure to disclose squad
camera footage governed by Arizona, not Brady, as merely potentially
exculpatory because the parties “can only guess about what [the] dash
camera captured”).5
5It is true that circuit, rather than Supreme Court, precedent does not in
and of itself constitute “clearly established” federal law for purposes of habeas
review, but it nevertheless may help guide the inquiry. See Lewis v. Zatecky, 993
F.3d 994, 1000 (7th Cir. 2021) (“For purposes of section 2254(d), the only relevant
law is that which is ‘clearly established Federal law, as determined by the Supreme
Court of the United States[.]’ . . . . Our own decisions, as well as those of other
Moreover, the Wisconsin Court of Appeals affirmed the trial court’s
rejection of Petitioner’s purported Brady claim on the ground that Stallings
failed to show that “the police acted in bad faith when they destroyed the
recording” because “the only evidence of record [wa]s that the tape was
destroyed in accordance with routine department policy.” Stallings, 2021
WL 8534196, at *4. This conclusion, too, tracks with governing federal
precedent. See Illinois v. Fisher, 540 U.S. 544, 546 (2004) (no Arizona violation
where “police, acting in accord with established procedures, had
destroyed” the evidence); U.S. v. Stallworth, 656 F.3d 721, 731 (7th Cir. 2011)
(affirming rejection of purported Brady claim because the defendant
“presented no evidence of bad faith on the part of the government” and the
police department “may have deleted the recording as a routine part of
video record maintenance”); United States v. Bell, 819 F.3d 310, 318 (7th Cir.
2016) (no Arizona violation when witness testified that video was taped over
as a matter of routine).6
For all these reasons, the Court concludes that Petitioner has not met
his burden of demonstrating that the Wisconsin Court of Appeals, in
affirming the rejection of his Brady claim, ran contrary to or unreasonably
applied clearly established Supreme Court precedent, or that it based its
circuits or state courts, are informative only insofar as they may shed light on our
understanding of the authoritative Supreme Court precedents.”).
6Petitioner argues that Captain “said under oath that she made a copy of”
the recording from when Petitioner was in the backseat of her squad car. ECF No.
31 at 2 (“She made a copy of the . . . recording. So what happen[e]d to it?”). This
appears to be a misinterpretation of Captain’s testimony. She testified that her
squad car automatically began a recording when someone was in the back, and
that any such recording was automatically, and temporarily, stored electronically.
She did not testify that she herself made any copy of that recording.
decision on any unreasonable determination of the facts. Accordingly, the
Court will deny Ground Four on its merits.
4.2 Ground Seven
In Ground Seven, Petitioner asserts that the admission of the no-
knock search warrant application and supporting affidavit into evidence at
trial violated his rights under the Confrontation Clause. Petitioner argues
that this “allowed the jury to read verbatim what the [CI] told the detective”
in violation of his “right to confront his accuser.” ECF No. 29 at 8 (“The [CI]
made accusations against [P]etitioner that w[ere] use[d] at trial. I have a
right to cross examine him.”); id. at 9 (“[T]he [CI] state[d] that he observed
a firearm belonging to an individual known as ‘TY’.”).
Respondent first argues that the Court should reject Ground Seven
because “[t]he alleged error was invited by” Stallings’s own trial counsel.
ECF No. 30 at 18. This argument refers, as discussed supra Section 2.2.1, to
Attorney Hailstock’s line of questioning on cross examination seeking to
delve into the credibility of the CI. But Attorney Hailstock later abandoned
the line of questioning, after which point the court struck that portion of the
examination from the record and ordered the jury to disregard it. Neither
the existence of the CI nor any of the CI’s statements were, therefore,
disclosed through that line of questioning, which in any event was stricken
from the record. The Court cannot, therefore, conclude that any “error was
invited by” Stallings’s own counsel. ECF No. 30 at 18. Even if the Court
were to conclude otherwise, however, it is not clear that it would matter;
“the Confrontation Clause confers a powerful and fundamental right that
is no longer subsumed by the evidentiary rules governing the admission of
hearsay statements. Thus, the mere fact that [a defendant] may have opened
the door to the testimonial, out-of-court statement that violated his
confrontation right is not sufficient to erase that violation.” United States v.
Cromer, 389 F.3d 662, 679 (6th Cir. 2004).7
Stallings more so takes issue with the earlier admission into evidence
of the search warrant application and supporting affidavit, which affidavit
included the CI’s statement that he or she saw a firearm belonging to an
individual named “TY” in the 19th Street Residence. ECF No. 29 at 8; ECF
No. 31 at 4 (“So before Agent Gajevic took the witness stand[,] the State had
already enter[ed] the [CI’s] statement” into evidence . . . .”). Indeed, it was
the State that moved that exhibit into evidence, not Stallings’s own counsel.
ECF No. 27-9 at 111.
Respondent also emphasizes, as the Wisconsin Court of Appeals
acknowledged, that while the warrant materials were admitted into
evidence, they were not published to the jury. ECF No. 30 at 21 & n.9;
Stallings, 2021 WL 8534196, at *9. Neither the Wisconsin Court of Appeals
nor Respondent, however, cites to any authority for the significance of that
context. Respondent does not suggest, for example, that the jury was unable
to consider the warrant materials during deliberations due to their having
been admitted into evidence but not published. He does not suggest, or cite
to any authority suggesting, that evidence cannot run afoul of the
Confrontation Clause if it is admitted into evidence but not published to the
jury during trial. To the contrary, it seems that whether the allegedly
violative evidence was published to the jury, in addition to being admitted
into evidence, is of no consequence in determining whether a Confrontation
7Respondent’s citations to the contrary do not actually involve the
Confrontation Clause, and so are of tenuous, if any, application to this case. ECF
No. 30 at 18 (citing U.S. v. Muskovsky, 863 F.2d 1319, 1329 (7th Cir. 1988) and State
v. Gary M.B., 676 N.W.2d 475, ¶ 11 (Wis. 2004)).
Clause violation occurred. See United States v. Dunbar, 104 F. App’x 638, 639
(9th Cir. 2004) (no Confrontation Clause violation where “no testimonial
evidence provided by the confidential informant was ever introduced into
evidence”) (emphasis added); Hicks v. United States, No. C05-1629 JCC
(CR02-375C), 2006 U.S. Dist. LEXIS 101559, at *6 (W.D. Wash. Aug. 3, 2006)
(no Confrontation Clause violation where “the Government neither
examined [the witness] nor used his affidavit as an exhibit at trial”) (emphasis
added).8
Respondent also notes that Stallings never objected at trial to the
introduction of the warrant materials into evidence, but Respondent again
fails to elaborate as to what significance he attributes to that fact. ECF No.
30 at 21. At least for procedural default purposes, Stallings’s failure to object
to the admission of the warrant materials into evidence is immaterial
because the Wisconsin Court of Appeals made no note of Stallings’s failure
to object and considered the Confrontation Clause claim on its merits.
Triplett v. McDermott, 996 F.3d 825, 829 (7th Cir. 2021) (quoting Richardson
v. Lemke, 745 F.3d 258, 269 (7th Cir. 2015)).
In any event, the Court cannot conclude that the Wisconsin Court of
Appeals’ disposition of this claim was “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, 569 U.S. at 508–
09 (quoting Harrington, 562 U.S. at 102).
“The Sixth Amendment’s Confrontation Clause provides that, ‘[i]n
all criminal prosecutions, the accused shall enjoy the right . . . to be
8It may, however, be relevant to determining whether any such
Confrontation Clause violation was ultimately harmless. See infra Section 4.2.
confronted with the witnesses against him.’” United States v. Lynn, 851 F.3d
786, 792 (7th Cir. 2017) (quoting U.S. CONST. AMEND. VI). As the Wisconsin
Court of Appeals correctly noted in affirming the rejection of Petitioner’s
Confrontation Clause claim, however, “[t]his Clause guarantees . . . only a
defendant’s right to those who ‘bear testimony’ against him.” Id. (quoting
Crawford v. Washington, 541 U.S. 36, 51 (2004)); Stallings, 2021 U.S. 8534196,
at *9 (citing Crawford, 541 U.S. at 59 n.9). “Nontestimonial evidence is not
protected by the Clause.” Id. (citing Crawford, 541 U.S. at 56, 68).
Importantly, the admission into evidence of statements not
introduced for the truth of the matter asserted do not implicate the
Confrontation Clause. Tennessee v. Street, 471 U.S. 409, 413 (1985); Crawford,
541 U.S. at 59 n.9 (“The Clause . . . does not bar the use of testimonial
statements for purposes other than establishing the truth of the matter
asserted.”) (citing Tennessee, 471 U.S. at 414). “Crawford . . . only covers
hearsay, i.e., out-of-court statements ‘offered in evidence to prove the truth
of the matter asserted.’” United States v. Tolliver, 454 F.3d 660, 666 (7th Cir.
2006) (quoting Fed. R. Evid. 801). The admission of non-hearsay statements
at trial “does not offend the Confrontation Clause because the declarant is
not a witness against the accused.” Id. (citing Crawford, 541 U.S. at 51, 59–
60, & n.9 and collecting cases).
It is true that introduction into evidence at trial of statements given
by confidential informants can in some instances run afoul of the
Confrontation Clause. United States v. Diggs, No. 18 CR 185-1, -3, 2022 U.S.
Dist. LEXIS 36598, at *46 (N.D. Ill. Mar. 2, 2022) (citing Davis v. Washington,
547 U.S. 813, 822 (2006) and United States v. Adams, 628 F.3d 407, 416 (7th
Cir. 2010)); Adams, 628 F.3d at 416 (“Our cases recognize there is a particular
potential for abuse when police officers testify to out-of-court statements by
confidential informants.”) (citing United States v. Silva, 380 F.3d 1018, 1020
(7th Cir. 2004)). But again, that is only so if those statements are offered into
evidence for the truth of the matter asserted. Adams, 628 F.3d at 417 (“The
CI’s statement was offered for its truth—that [the defendant] possessed
crack on his person . . . . The district court erred by allowing its
admission . . . .”).
The Wisconsin Court of Appeals determined in this case that “[t]he
warrant materials were introduced [into evidence at trial by the State] only
as proof [that] police had entered the residence pursuant to a warrant,” and
that they were therefore non-hearsay and did not run afoul of the
Confrontation Clause. Stallings, 2021 WL 8534196, at *9; ECF No. 27-9 at 111.
Giving the state court decision “the benefit of the doubt,” as the Court must,
the Court concludes that the Wisconsin Court of Appeals’ determination
neither ran contrary to or unreasonably applied governing Supreme Court
precedent, nor was it based on an unreasonable factual determination.
Woodford, 537 U.S. at 24; Hartjes, 456 F.3d at 792.
United States v. Holmes, 620 F.3d 836 (8th Cir. 2010) is illustrative for
purposes of contrast. There, the prosecution instructed a testifying officer
to read from the affidavit the officer had prepared in support of an
application for a warrant to search the defendant’s residence. Holmes, 620
F.3d at 840. The officer read several paragraphs of the affidavit into the
record, including that a “CI informed [him] that there [wa]s a black male . . .
distributing crack cocaine and cocaine from his residence . . . and [wa]s in
possession of a handgun” and that the CI confirmed that male as being the
defendant. Id.
The Eighth Circuit—importantly, on direct appeal, rather than
habeas review—concluded that the “statements made by the CI to” the
officer “that led to [the officer’s] further investigation of” the defendant
“clearly fall within the class of statements considered testimonial.” Id. at 841
(citing United States v. Lopez-Medina, 596 F.3d 716, 730 (10th Cir. 2010)). The
Eighth Circuit rejected the prosecution’s attempt to argue that the
Confrontation Clause was not implicated because the officer’s “statements
concerning what the CI told him are not hearsay because they were offered
to . . . establish the propriety of the investigation, not for the truth of the CI
said.” Id. The court acknowledged that “out-of-court statements are not
hearsay if they are offered ‘to explain the reasons for or propriety of a police
investigation,” but “only when the propriety of the investigation is at issue
in the trial.” Id. (quoting United States v. Malik, 345 F.3d 999, 1001–02 (8th
Cir. 2003) and citing United States v. Maher, 454 F.3d 13, 22 (1st Cir. 2006)).
That exception was not at play in Holmes, the court determined, because
“the propriety of the investigation was never really at issue” and the
defendant “did not challenge the validity of the search warrant.” Id.
Similarly, in Silva,9 the Seventh Circuit concluded that the
defendant’s right to confront the witnesses against him was violated when
an agent testified at trial to conversations involving a non-testifying
confidential informant. 380 F.3d at 1019. The agent there testified that the
informant spoke about “this individual named Juan” who was going to be
making a delivery of methamphetamine. Id. The lower court in that case
overruled hearsay objections, concluding that the testimony was “not being
offered for the truth of the matter.” Id. “That’s surprising,” the Seventh
Circuit wrote, “for the evidence directly inculpated [the defendant]” and it
9Again, circuit precedent does not in and of itself constitute “clearly
established” federal law for purposes of habeas review, but it nevertheless may
help guide the inquiry. See supra 5 (citing Lewis, 993 F.3d at 1000).
was not clear “to what issue other than the truth the testimony [might] have
been relevant.” Id. (citing Fed. R. Evid. 801(c)).
The Court is satisfied that the circumstances of the instant case are
sufficiently materially distinguishable that the Wisconsin Court of Appeals
cannot be said to have objectively unreasonably disposed of this ground or
disposed of it in a manner contrary to clearly established federal precedent.
In this case, the specific statement of the CI with which Stallings
takes issue—that the CI saw in the 19th Street Residence a firearm
belonging to someone known as “TY”—was not introduced at Stallings’s
trial to prove that a firearm was, in fact, seen at the 19th Street Residence
and attributable to Stallings. That statement was never testified to at all.
None of the CI’s statements in the affidavit were ever, themselves, even
brought up at trial, let alone testified to. The fact that a CI was even involved
in the investigation was never mentioned.
The warrant materials were instead introduced into evidence merely
in support of the witness’s statement that the search of the 19th Street
Residence was authorized by a warrant obtained the day prior. ECF No. 27-
9 at 111. As Respondent notes, ECF No. 30 at 21, the State later asked Gajevic
on direct examination about a firearm being found in the 19th Street
Residence, but neither party mentioned the fact that a CI had previously
told law enforcement that he or she saw a firearm belonging to “TY”—i.e.,
Petitioner—there. Indeed, the State did not need to do so—officers
themselves found a firearm in their search of the 19th Street Residence
(which firearm Petitioner later admitted at an interrogation to having
purchased), so any reference back to the CI having seen a firearm there
would have been unnecessary.
Unlike in Holmes, the propriety and validity of the search was, in fact,
at issue in this case; Stallings had earlier moved to suppress the drugs and
guns recovered pursuant to the search warrant, arguing that the warrant
application and supporting affidavit did not support a finding of probable
cause. Stallings, 2021 WL 8534196, at *2. Similarly, in contrast to Silva, where
the court questioned “to what issue other than the truth the testimony
[might] have been relevant,” the context of the admission in this case makes
clear that the warrant materials were relevant to demonstrating that the
search of the 19th Street Residence was authorized. 380 F.3d at 1019; see also
Cromer, 389 F.3d at 676 (“Even if testimonial statements of an out-of-court
declarant were revealed . . . , [the defendant’s] confrontation right was not
implicated because the testimony was provided merely by way of
background.”) (citing United States v. Martin, 897 F.2d 1368, 1371–72 (6th
Cir. 1990)); but see Adams, 628 F.3d at 418 (rejecting Government’s
contention that admission of testimonial statements did not violate
Confrontation Clause because “they give context to the investigation,”
concluding that such an argument “would eviscerate the constitutional
right to confront and cross-examine one’s accusers’”) (quoting Silva, 380
F.3d at 1020).
Even if the Court were to conclude otherwise, however, as
Respondent asserts, the issue is nevertheless subject to harmless error
review. ECF No. 30 at 25; United States ex rel. Lee v. Flannigan, 884 F.2d 945,
951 (7th Cir. 1989) (“[C]onfrontation clause violations are subject to a
harmless error analysis, . . . and the harmless error standard applies in
habeas review . . . .”) (internal citations omitted) (citing United States ex rel.
Savory v. Lane, 832 F.2d at 1016–17 (7th Cir. 1987)). “On habeas review, a
constitutional error is considered harmless unless it can be shown to have
‘had substantial and injurious effect or influence in determining the jury’s
verdict.’” Jones v. Basinger, 635 F.3d 1030, 1052 (7th Cir. 2011) (internal
quotation marks omitted) (quoting Brecht v. Abrahamson, 507 U.S. 619, 622
(1993) and citing O’Neal v. McAninch, 513 U.S. 432, 439 (1995)); see also
Rhodes v. Dittman, 903 F.3d 646, 665 (7th Cir. 2018) (same) (quoting Fry v.
Pliler, 551 U.S. 112, 116 (2007) and citing Jensen v. Clements, 800 F.3d 892,
902–03 (7th Cir. 2015)). “This requires ‘more than a reasonable possibility
that the error was harmful.’” Rhodes, 903 F.3d at 665 (internal quotation
marks omitted) (quoting Davis v. Ayala, 576 U.S. 257, 268 (2015)).
In conducting harmless error review, courts “look to ‘a host of
factors,’ such as ‘the importance of the [allegedly violative evidence] in the
prosecution’s case, whether [that evidence] was cumulative, the presence
or absence of evidence corroborating or contradicting [that allegedly
violative evidence] . . . , and, of course, the overall strength of the
prosecution’s case.’” Jones, 635 F.3d at 1052 (quoting Delaware v. Van Arsdall,
475 U.S. 673, 684 (1986)).
Petitioner has not shown, and the Court cannot conclude, that the
admission of the warrant materials into evidence—even if in violation of
the Confrontation Clause—“had substantial and injurious effect or
influence in determining the jury’s verdict.” Id. (quoting Brecht, 507 U.S. at
622). First, even omitting the warrant materials from the equation—which
may or may not have even been looked at by the jury—“there was plenty
of other evidence which linked” Petitioner to the offenses charged, and the
defense did little in the way of successful rebuttal. Flannigan, 884 F.2d at
951; but see Rhodes, 903 F.3d at 665 (“Harmless error ‘is not the same as a
review for whether there was sufficient evidence at trial to support a
verdict.”) (quoting Jensen, 800 F.3d at 902). Petitioner’s own counsel, in his
opening statement, essentially conceded that things did not look good for
Petitioner, at least with respect to the drug charges. ECF No. 27-9 at 92
(“You may find him guilty on the marijuana charge. I’m not going to sit up
here and say you won’t or you will. The evidence is what it is.”).
The jury heard that (1) a search of the 19th Street Residence revealed
marijuana in various forms and in various parts of the home (totaling nearly
190 grams and representing several thousand dollars’ worth of product),
ECF Nos. 27-9 at 102, 117, 27-10 at 44, and 27-11 at 60, 46; (2) mail and papers
established that the 19th Street Residence was Petitioner’s residence; and
(3) a sawed-off shotgun and shells were found during a search of the 19th
Street Residence, ECF No. 27-10 at 64, 67–69. It was also established at trial
that several of the containers of marijuana discovered in the search bore
Petitioner’s fingerprints. ECF No. 27-11 at 20–21, 40. The jury also heard
that, in an interrogation with police, Stallings confessed to having
purchased the sawed-off shotgun, conceded that his fingerprints would be
found on it, and confessed to selling marijuana. ECF No. 27-10 at 101, 104–
06; ECF No. 27-12 at 24–25, 62–63. A witness also testified that Stallings said
that his “retirement plan” was to rob a drug house with the sawed-off
shotgun. ECF No. 27-13 at 43. Finally, a witness informed the jury that,
based on his review of the case file and his experience, the amount and
types of marijuana recovered, in conjunction with the presence of a firearm
in the residence, was consistent with possession with intent to deliver. ECF
No. 27-11 at 50, 53, 72.
More importantly, there is no indication that the admission of the
warrant materials into evidence prejudiced Petitioner at all such that it
could be deemed substantially injurious. Jones, 635 F.3d at 1053
(emphasizing the importance of analyzing the prejudicial effect of the
inclusion of the allegedly violative evidence at trial). As noted, the warrant
materials were admitted into evidence solely in the context of establishing
that the search of the 19th Street Residence was undertaken pursuant to a
warrant. Introduction of the warrant materials into evidence ultimately
bore little to no importance in the State’s case; neither the State nor any of
the State’s witnesses discussed the materials as themselves going to
Petitioner’s guilt.10 Cf. Jensen, 800 F.3d at 904–06 (letter admitted in violation
of Confrontation Clause was clearly important to the state’s case since “the
State’s end to its . . . closing argument focused on the letter,” twelve
witnesses testified to its contents, the state “displayed the . . . letter itself on
the screen and asked the jury to read it,” and “the State . . . repeatedly
fought to get the letter admitted”).
In contrast, it was not, in fact, until Petitioner himself mentioned the
CI in his testimony that the jury ever became aware of the involvement of a
CI, since the affidavit containing the CI’s statements had not been published
to the jury and had not, therefore, yet been made available to it. ECF No.
27-12 at 72–73; see supra note 8. And it was clear that the State had not
expected the issue of the CI to even come up at trial. ECF No. 27-13 at 78
(“Only 22 months later when [Stallings] takes the witness stand do we hear
this revelation . . . about this informant planting these guns.”). This further
demonstrates that the warrant materials and the CI’s statements therein
were not, and were not considered by the State to be, an important
component of the State’s case.
10The State, in its examination of Petitioner, referenced the warrant and its
supporting affidavit, but only in the context of describing its total page length after
Petitioner testified that he was confused by something in the warrant. ECF No. 27-
13 at 18–19.
Finally, the CI’s statement in the affidavit that he or she saw a firearm
believed to be owned by Petitioner in the 19th Street Residence was
cumulative of other evidence at trial—specifically, the discovery of the
sawed-off shotgun, Petitioner’s concession during interrogation that he
purchased it and that his prints would be found on it, Petitioner’s ability
during the interrogation to describe the firearm in great detail, and a
witness’s testimony that Petitioner said he was going to rob a drug house
with the sawed-off shotgun. For all these reasons, the Court is therefore
satisfied that any alleged Confrontation Clause violation was in any event
harmless. For all these reasons, the Court will deny Ground Seven on its
merits.
5. CONCLUSION
As discussed above, both Grounds Four and Seven, Petitioner’s sole
remaining grounds for relief, will be denied. Accordingly, the Court is
constrained to deny the corrected, amended petition in its entirety.
Under Rule 11(a) of the Rules Governing Section 2254 Cases, “the
district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.” To obtain a certificate of
appealability under 28 U.S.C. § 2253(c)(2), a petitioner must make a
“substantial showing of the denial of a constitutional right” by establishing
that “reasonable jurists could debate whether (or, for that matter, agree
that) the 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) (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). In light of the well-settled principles
analyzed above, no reasonable jurists could debate whether the corrected,
amended petition has merit. The Court must, therefore, deny Petitioner a
certificate of appealability.
Accordingly,
IT IS ORDERED that Grounds Four and Seven of Petitioner’s
corrected, amended petition, ECF No. 11, be and the same are hereby
DENIED on their merits;
IT IS FURTHER ORDERED that Petitioner’s corrected, amended
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, ECF No.
11, be and the same is hereby DENIED;
IT IS FURTHER ORDERED that the Clerk of Court shall replace
Dan Cromwell with Michael Gierach as Respondent in this action;
IT 1S FURTHER ORDERED that a certificate of appealability 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 Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 25th day of March, 2024.
BY THEXCOURT:
VA AV Se
SR
AY VK tate ,
JAP. Stixd{mueller
U.S. DistrictJudge
Page 30 of 31
This Order and the judgment to follow are final. A dissatisfied party may
appeal this Court’s decision to the Court of Appeals for the Seventh
Circuit by filing in this Court a notice 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. Case Information
- Court
- E.D. Wis.
- Decision Date
- March 25, 2024
- Status
- Precedential