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Full Opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ALEXANDER JEROME WILEY,
Petitioner,
Case No. 21-CV-1037-JPS
v.
JON NOBLE,
ORDER
Respondent.
Petitioner Alexander Jerome Wiley (“Petitioner”) brings this petition
for a writ of habeas corpus to challenge a state court conviction arising from
Milwaukee County Circuit Case No. 2011CF003900.1 ECF No. 1. In that case,
a jury found Petitioner guilty of second-degree reckless homicide
(modifiers: party to a crime and use of a dangerous weapon) and possession
of a firearm by a felon. 2011CF003900. Petitioner now brings a § 2254 habeas
petition, contending that his constitutional rights were violated in his state
court proceedings. For the time being, Respondent solely “moves to dismiss
Ground 1.” ECF No. 8 at 1. For the reasons explained below, the Court will
deny the motion.
The Court screened the petition under Rule 4 of the Rules Governing
§ 2254 cases. ECF No. 4. Therein, the Court permitted Petitioner to proceed
on three habeas grounds—ostensibly the same grounds upon which
Petitioner appealed his conviction before the Wisconsin state courts. Id. at
1State of Wisconsin v. Alexander Jerome Wiley, Milwaukee Cnty. Case No.
2011CF003900,
https://wcca.wicourts.gov/caseDetail.html?caseNo=2011CF003900&countyNo=40
&index=0&mode=details (last visited Nov. 10, 2022) (hereinafter cited to as
“2011CF003900”).
1–2. Those grounds are: (1) the trial court erroneously permitted a lay
witness to give hearsay testimony; (2) Petitioner suffered a violation of his
Sixth Amendment right to confront the witnesses against him because a
medical examiner who did not conduct the autopsy on the homicide victim
testified as an expert about the victim’s cause of death; and (3) the
prosecution failed to present sufficient evidence to prove him guilty of
second-degree reckless homicide beyond a reasonable doubt. Id.; see also
State v. Wiley, 2020 Wisc. App. LEXIS 476, at *1, 2020 WI App 76, 394 Wis.
2d 838, 953 N.W.2d 96 (Wis. Ct. App. 2020).
As a threshold matter, the Court is not impressed with the quality of
Respondent’s motion and brief. In its motion, Respondent claims that
“Ground 1 is procedurally defaulted, and Ground 3 is not a cognizable
ground for federal habeas relief.” ECF No. 7 at 1. In its brief in support,
however, in contradiction with its motion, Respondent writes that Ground
1 is “not cognizable in habeas corpus.” Id. at 2. Despite Respondent’s
original statement in its motion that Ground 1 is procedurally defaulted,
the concept of procedural default is never again mentioned in Respondent’s
brief.
The Court can only assume that Respondent, in its motion, intended
to write that Ground 1 is not cognizable in habeas corpus and Ground 3 is
procedurally defaulted. Needless to say, the Court is not eager to begin its
review of this motion on a foundation of speculation as to the grounds on
which Respondent even intends to move.
1. STANDARD OF REVIEW
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
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).
2. RELEVANT BACKGROUND
2.1 Factual Background
Petitioner’s case arose out of the death of victim Darrin Moore
(“Moore”). Wiley, 2020 Wisc. App. LEXIS 476, at *1–2. According to the
criminal complaint, Moore was shot in the head while driving his van in
Milwaukee. Id. Moore was declared dead in the hospital several days later.
Id. at *2. An investigation led police to question Gerald R. Ray (“Ray”), who
told detectives that he and his friend, “Low,” had shot at the van. Id. An
interview with Ray’s girlfriend, Shanika Thomas (“Thomas”), revealed that
“Low” was Petitioner. Id.
2.2 Procedural Background
Petitioner was originally charged with first-degree reckless
homicide by use of a dangerous weapon as a party to a crime. Id. at *1. He
entered a plea of not guilty and, by February 2014, the matter proceeded to
trial on two charges: the original homicide count, but in the second degree,
and an additional count of possessing a firearm as a felon. Id. at *2. The
following is drawn from the Wisconsin Court of Appeals’ recitation of the
trial’s progression:
Ray also testified. He identified Wiley in the courtroom
as the person he knew as Low. Ray told the jury that on
August 2, 2011, he and Wiley saw a person subsequently
identified as Moore sitting with a shotgun in front of a corner
store. Ray said he pulled out his forty-five caliber handgun,
and he and Wiley told Moore to “move around . . . . [G]et
away from the area.” Ray testified that Moore got into his van
and drove down the block.
Later that evening, Ray and Wiley saw Moore’s van
and opened fire. Ray testified that, after both men fired
several shots at the van, he saw it crash into some parked cars.
Ray and Wiley then fled the scene. Ray said that as he ran, he
saw Wiley’s gun, which Ray identified as a nine-millimeter
handgun.
Ray said that he hid his gun and then talked to Thomas
about the shooting because he wanted her to know that the
police might be looking for him. He did not give her many
details, but he testified that he “[s]omewhat” told her about
the people involved.
Ray testified that, approximately a week after the
shooting, the police arrested and questioned him. He initially
denied any involvement in the shooting, but on his fourth day
in custody he admitted his participation after he learned that
Thomas had talked to the police. Ray further testified that, as
the questioning progressed, he admitted that Wiley was also
involved.
Ray acknowledged that he had been charged with first-
degree reckless homicide in Moore’s death. He further
acknowledged that he had reached a plea agreement in which
the State agreed to reduce the charge to second-degree
reckless homicide and recommend ten years of initial
confinement in exchange for his guilty plea to the reduced
charge and his testimony at Wiley’s trial.
Wiley, by counsel, cross examined Ray at length about
the differing stories he told the police during his
interrogation. Ray agreed that the police suggested to him
that “it’s always best if you’re the first one” to tell the police
what happened. Ray also agreed that the police asked him if
he knew someone “by the nickname of Lo” and suggested
that they thought Low was involved in the shooting. Ray
admitted that he changed his story over time “to protect
[him]self,” and said that he was testifying “because [he was]
getting a deal.”
On re-direct examination, Ray explained that he did
not want Wiley to become a suspect in Moore’s shooting
death and therefore did not name Wiley as a co-actor during
his initial police interrogation. Ray then reiterated that Wiley
was the person firing shots with Ray on the evening of August
2, 2011.
After Ray testified, the State called Thomas to testify
about Ray’s statement to her that Wiley participated in the
shooting that led to Moore’s death. The defense objected,
contending that the proposed testimony was inadmissible
hearsay. The circuit court overruled the objection, concluding
that the proposed testimony constituted an admissible prior
consistent statement by Ray who “has given different stories
at different times, [and] has, depending on who you believe,
fabricated one thing or another, lied either a lot or a little . . .
.”
Thomas testified that Ray is the father of her child, and
she was dating him at the time of the shooting. She testified
that, before Ray was arrested, he told her that he and “L.O.”
felt threatened by a man with a gun, and they shot at him.
Thomas went on to say that she talked to the police when they
came to her home to arrest Ray, and she told them that “L.O.”
was involved in the shooting. From the witness stand, she
identified Wiley as “L.O.”
Wiley, 2020 Wisc. App. LEXIS 476, at *6–9.
The Wisconsin Court of Appeals concluded that the Milwaukee
County Circuit Court properly admitted Thomas’s testimony under Wis.
Stat. § 908.01(4)(a)2, as evidence of Ray’s prior consistent statement. Id. at
*11. The court wrote that “[a] declarant’s prior out-of-court statement is not
hearsay . . . and therefore not excluded under § 908.02[] if the statement
satisfies the requirements of § 908.01(4)(a).” Id. at *12. That provision
requires that: “(1) the declarant testify at trial and be subject to cross-
examination concerning the statement; (2) the statement is consistent with
the declarant’s testimony; and (3) the statement rebut an express or implied
charge against the declarant of recent fabrication or improper influence or
motive.” Id. (internal citation omitted). The Court then concluded that
Thomas’s testimony satisfied each of those three components. Id. at *13.
3. ANALYSIS
In his habeas petition, Petitioner wrote that “[t]he introduction of
Shanika Thomas’s testimony violated [his] right to confrontation.” ECF No.
1 at 6. The Court in its screening order interpreted this as claiming that “the
trial court erroneously permitted a lay witness (Shanika Thomas) to give
hearsay testimony . . . .” ECF No. 4 at 1.
Respondent now argues that the Court should dismiss Ground 1
because it is “a claim regarding a state law evidence rule that is not
cognizable under federal habeas corpus.” ECF No. 8 at 2. Despite his
recitation of the word “confrontation,” Respondent argues, “his
explanation of the ground makes clear that he is arguing under state law
evidence rules.” Id. “The state law evidence rule was all he argued in state
court . . . .” Id. Accordingly, Respondent writes, “no Confrontation Clause
claim as to Thomas’s testimony is exhausted.” Id. “Wiley’s challenge to the
admission of the statement via Wisconsin’s prior inconsistent statement
rule—the only challenge to the statement that he preserved by presenting
it to the state courts—provides no basis for federal habeas corpus relief.” Id.
at 3. As the Court understands it, Respondent seems to argue that Ground
1 involves only state law evidence rules, and that it is accordingly not
cognizable for habeas purposes. Alternatively, Respondent seems to argue
that if the Court interprets Petitioner’s Ground 1 as relating to a violation
of his right to confrontation, the Court should find that ground as being
unexhausted.
In his response, Petitioner describes Ground 1 as follows: “the trial
court erroneously permitted a lay witness (Shanika Thomas) to give
hearsay testimony in violation of his Sixth Amendment right.” ECF No. 9
at 2. Petitioner writes that the Court must give his habeas petition a “liberal
construction” due to his pro se status. Id. at 3. In light of that, he argues,
“his petition contains enough detail to describe a claim that is within the
power of a federal court to address.” Id.
Petitioner’s habeas motion clearly alleges a violation of his Sixth
Amendment right to confrontation. So to the extent that Respondent argues
that “Ground 1 is a claim regarding a state law evidence rule” with no
reference to the right of confrontation, the Court disagrees. See ECF No. 8
at 2. The question is therefore not whether Petitioner states a cognizable
ground, but rather whether that ground—violation of his Sixth
Amendment right to confrontation—was properly exhausted.2
2The Court will not continue past the exhaustion analysis to determine
whether Ground 1 is procedurally defaulted as the concept of procedural default
is not mentioned in Respondent’s brief.
In support of his argument that this ground was exhausted,
Petitioner provides the Court with the Brief and Appendix that he
presented to the Wisconsin Court of Appeals during the pendency of State
v. Wiley. Therein, Petitioner clearly wrote Issue I presented for review as:
“Whether the introduction of Shanika Thomas’s testimony as a prior
consistent statement violates Wiley’s right under the Sixth Amendment?”
ECF No. 8-1 at 5. Petitioner additionally asserted this violation of his right
to confrontation in his reply brief to the Wisconsin Court of Appeals. ECF
Nos. 9 at 4; 9-3 at 1 (“The introduction of Shanika Thomas’s testimony
violated Wiley’s right to confrontation.”).
In its reply, Respondent concedes that Petitioner invoked the “Sixth
Amendment” and his right to confrontation in his briefing to the Wisconsin
Court of Appeals. ECF No. 10 at 1. But Respondent asserts that Petitioner’s
doing so was merely a “general appeal to a [broad] constitutional
guarantee,” which is insufficient for purposes of habeas. Id. (quoting Gray
v. Netherland, 518 U.S. 152, 163 (1996)). This is a new and distinct argument
from its brief in support, since Respondent originally argued flatly that
Petitioner never argued a federal violation in Ground 1 before the
Wisconsin state courts at all. The Court would be justified in holding that
Respondent’s attempt to “flesh out” its argument in its reply may not be
considered since arguments raised for the first time in a reply are deemed
forfeited. See Walsh v. Fensler, No. 22-C-1030, 2022 U.S. Dist. LEXIS 140904,
at *9 n.2 (N.D. Ill. Aug. 8, 2022) (“Defendants attempt to flesh out their
argument in their reply, but arguments raised for the first time in reply are
forfeited.”) (internal citations omitted). Nevertheless, the Court will
consider the merits of the contention.
The U.S. Supreme Court has held that “exhaustion of state remedies
requires that petitioners ‘fairly present’ federal claims to the state courts in
order to give the State the ‘opportunity to pass upon and correct’ alleged
violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365
(1995) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). “If state courts are
to be given the opportunity to correct alleged violations of prisoners’
federal rights, they must surely be alerted to the fact that the prisoners are
asserting claims under the United States Constitution.” Id. at 365–66. This
does not suggest, however, that a petitioner is required to “spell out each
syllable of the claim before the state court for the claim to have been ‘fairly
presented’. . . .” Berkley v. Quarterman, 507 F. Supp. 2d 692, 716 (W.D. Tex.
2007).
In Gray v. Netherland, cited by Respondent, the U.S. Supreme Court
elaborated on this issue, holding that the petitioner’s asserted ground of a
violation of his “right to due process of law under the Fourteenth
Amendment” was insufficiently broad and generalized to satisfy the
exhaustion requirement for habeas purposes. 518 U.S. 152, 162–63 (1996).
“[F]or purposes of exhausting state remedies, a claim for relief in habeas
corpus must include reference to a specific federal constitutional guarantee,
as well as a statement of facts that entitle the petitioner to relief.” Id. at 162
(internal citation omitted). “We have also indicated,” the Court further
wrote, “that it is not enough to make a general appeal to a constitutional
guarantee as broad as due process to present the ‘substance’ of such a claim
to a state court.” Id. at 163. In Gray, “[t]he only manner in which the habeas
petitioner had cited federal authority was by referring to a state-court
decision in which ‘the defendant . . . asserted a broad federal due process
right to jury instructions that properly explain state law.’” Id. (internal
citation omitted).
The situation before the Court is distinct in some respects from Gray.
While the petitioner there referred generally to his right to due process of
law under the Fourteenth Amendment, Petitioner here argued to a
narrower ground—his right to confront the witnesses against him pursuant
to the Sixth Amendment. And while in Gray the only reference to federal
authority provided by the Petitioner was through a state-court decision,
here Petitioner did cite to actual federal authority, although admittedly the
case cited discussed admission of prior consistent statements of witnesses
without reaching a right to confrontation discussion. See ECF No. 8-1 at 12
(quoting Tome v. United States, 513 U.S. 150, 157 (1995)).
The Court is also guided by contrasting the case before it with
Delesline v. Conway, 755 F. Supp. 2d 487 (S.D.N.Y. 2010). There, the court
held that petitioner’s “arguments to the Appellate Division that he was
denied a fundamentally fair trial due to the admission of Detective Sankhi’s
testimony were insufficient to put the state court on notice that [petitioner]
claimed a violation of his federal constitutional rights.” Delesline, 755 F.
Supp. 2d at 498. In Delesline, the petitioner asserted broadly the
“fundamental right to a fair trial” and “failed to cite any federal
constitutional provisions or to assert his claims ‘in terms so particular as to
call to mind a specific right protected by’ the constitution.” Id. Accordingly,
the court found that petitioner “did not ‘fairly present’ the Due Process
Claim to the state court and, therefore, the claim is not subject to federal
habeas review.” Id. (internal citation omitted). The same cannot be said
here.
Petitioner, in his brief to the Wisconsin Court of Appeals, wrote that
“Shanika Thomas’s statement, which was introduced at Wiley’s trial as a
prior consistent statement, does not meet the standard of Wis. Stat. Sec.
908.01(4)(a)2, and therefore constitutes hearsay.” ECF No. 8-1 at 11. The
implication of that, as explicitly referenced by Petitioner in his heading, was
that the introduction of this hearsay statement “violated Wiley’s right to
confrontation.” Id. Petitioner’s briefing before the Wisconsin Court of
Appeals was “sufficient to put the state court on notice” that he was seeking
relief on the ground that his Sixth Amendment right to confrontation was
violated by the admission of Thomas’s allegedly improperly admitted
testimony. See Delesline, 755 F. Supp. 2d at 498.
Petitioner explicitly presented the issue of his right to confrontation
as implicated by the admission of Thomas’s testimony to the Wisconsin
Court of Appeals. Whether the Wisconsin Court of Appeals actually
analyzed the issue in terms of Petitioner’s right to confrontation (which it
appears it did not, at least not in the context of Thomas’s testimony) is not
the critical question. The critical question is whether Petitioner fairly
presented the alleged violation of that specific right as implicated by the
admission of Thomas’s testimony to the Wisconsin Court of Appeals, such
that the court was given a proper opportunity to consider that issue. The
Court concludes that it was. See Dye v. Hofbauer, 546 U.S. 1, 3 (2005) (“[T]he
Court of Appeals was incorrect . . . to conclude that, when seeking review
in the state appellate court, petitioner failed to raise the federal claim based
on prosecutorial misconduct. The Court of Appeals examined the opinion
of the state appellate court and noted that it made no mention of a federal
claim. That, however, is not dispositive. Failure of a state appellate court to
mention a federal claim does not mean the claim was not presented to it.”).
The Court is obligated to liberally interpret Petitioner’s habeas
motion by virtue of his pro se status. A liberal but entirely reasonable
interpretation thereof leads the Court to conclude that Petitioner properly
exhausted Ground 1 for purposes of habeas corpus. This is not a case where
“the state court needed to look beyond ‘a petition or a brief (or a similar
document)’ to be aware of the federal claim.” Dye, 546 U.S. at 4 (quoting
Baldwin v. Reese, 541 U.S. 27, 32 (2004)). Respondent’s arguments to the
contrary are in error.
4. CONCLUSION
For the reasons explained above, the Court finds that Petitioner’s
asserted Ground 1—that the admission of hearsay testimony by Thomas
against him violated his Sixth Amendment right to confrontation—was
exhausted. The Court does not now and has not herein addressed the merits
of Ground 1, but rather merely holds that Respondent’s assertion that “no
Confrontation Clause claim as to Thomas’s testimony is exhausted” is
without merit. See ECF No. 8 at 2.
Accordingly,
IT IS ORDERED that Respondent’s motion to dismiss, ECF No. 8,
be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Respondent shall answer or
otherwise respond, complying with Rule 5 of the Rules Governing Section
2254 Cases, as to all three (3) grounds raised in Petitioner’s habeas motion
within (21) days of this Order.
IT IS FURTHER ORDERED that Petitioner shall file any reply to
Respondent’s answer or other response to Petitioner’s habeas motion
within (21) days of Petitioner’s receipt of that answer or other response.
Dated at Milwaukee, Wisconsin, this 29th day of November, 2022.
T \ COURT:
=
SDK.
P. ueller
.S. District Judge
Page 13 of 13 Case Information
- Court
- E.D. Wis.
- Decision Date
- November 29, 2022
- Status
- Precedential