Benson v. Foster
| Decision Date | 28 May 2020 |
| Docket Number | Case No. 19-CV-100 |
| Parties | RICHARD DANIEL BENSON, Petitioner, v. BRIAN FOSTER, Respondent. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Richard Daniel Benson has filed a habeas corpus petition pursuant to 28 U.S.C. § 2254, asserting that his state court conviction and sentence were imposed in violation of the Constitution. For the reasons that follow, Benson's petition is denied.
Petitioner is a Wisconsin state prisoner, incarcerated for convictions on charges of (1) second-degree sexual assault of a child under age sixteen; (2) attempted first-degree sexual assault of a child under age thirteen; (3) first-degree sexual assault of a child under age sixteen by use of force; (4) second-degree sexual assault of a child under age sixteen; (5) incest; and (6) felony intimidation of a witness in the Milwaukee County Circuit Court. ECF No. 8-1.
Initially, the parties reached a plea agreement in which Benson agreed to plead guilty to charges (1) and (2), with the State agreeing to recommend dismissal with prejudice of the remaining charges. ECF No. 8-5, ¶ 2. The circuit court accepted petitioner's guilty pleas and dismissed the remaining charges with prejudice. See ECF No. 8-9 at 23:5-8 ( ). Before sentencing, petitioner moved to withdraw his guilty pleas. ECF No. 8-5, ¶ 3. The circuit court granted these motions and subsequently reinstated the dismissed charges without objection from petitioner's trial counsel. ECF No. 8-11 at 17-18. The State pursued all original charges at trial.
During voir dire, the prosecutor exercised a peremptory strike and removed Juror 5,1 an African American woman, from the panel of prospective jurors. Id., ¶ 4; ECF No. 8-13 at 105:21-24. Petitioner, who is also African American, made a Batson objection. Id. at 106:1-20.2 The prosecutor offered three explanations for her strike: (1) Juror 5 said she lived on the "north side" of Milwaukee,3 where some of the crimes that were the subject of the trial were committed; (2) Juror 5 said that she had two boys who were "roughly similar in age to the defendant"; and (3) Juror 5 was remarkably unresponsive4 during voir dire. See id. at 107:8-108:2. The circuit court accepted all three reasons. Id. at 108:22-109:18. Petitioner was convicted on all charges and sentenced to fifty years of initial confinement and twenty-five years of extended supervision. ECF No. 8-5, ¶ 5.
Petitioner appealed, raising Batson and ineffective assistance of trial counsel claims. See ECF No. 8-2. The Wisconsin Court of Appeals affirmed. The dismissal of charges as part of plea negotiations did not constitute an "acquittal" for Double Jeopardy purposes because the circuit court made no ruling equivalent to a "court-decreed acquittal" under U.S. Supreme Court precedent. ECF No. 8-5, ¶ 10. Specifically, the trial court never found that the State had insufficient proof to convict and any distinction between a dismissal with prejudice vs. a dismissal without prejudice is irrelevant where petitioner repudiated the plea agreement that brought about the dismissals. Id., ¶¶ 11-13. Trial counsel was not ineffective for failing to challenge reinstatement of the dismissed charges because such a motion would have been properly denied. Id., ¶ 14.
As to the Batson challenge, the appeals court found that petitioner's challenge of the "north side" rationale as not race-neutral had not been raised below, explaining that his trial counsel's objection was "only that the north side of Milwaukee is a very large place and Juror 5's residence there does not demonstrate much of a connection to Benson's case." Id., ¶ 22.5 Thus, argument that the prosecutor's "north side" reason was not race-neutral was not properly before the appeals court and had no bearing on whether the circuit court was clearly erroneous. Id.
Likewise, under step three, Benson's full critique of the prosecutor's reasons on appeal should have been made before the circuit court; trial counsel could have requested adjournment for Batson hearing, however such a request was not made. Id., ¶ 25. Theappeals court then criticized his juror comparison arguments as "mak[ing] up facts, draw[ing] unsupportable inferences, and repeatedly cit[ing] to evidence outside the record." Id., ¶ 26. Such facts were "not properly before th[e] court" and the panel "decline[d] to take judicial notice of the multitude of 'evidence' Benson attempt[ed] to introduce." Id., ¶ 27. Further, Benson's claim that the prosecutor's "north side" reason was pretextual was not made in circuit court, either. Id., ¶ 28.
On appeal, Benson also identified Juror 25,6 who ultimately served on the jury, as proof of the State's discriminatory intent. Id., ¶ 29. See also ECF No. 8-2 at 16-17. The appeals court dismissed this point, conceding that while some similarities existed, Benson did not "identify any other potential juror who also lived in the neighborhood in which the majority of the crimes occurred, had sons close in age to Benson, and was 'remarkably quiet' during voir dire." ECF No. 8-5, ¶ 29 (emphasis added). "At most, the other potential jurors Benson identifie[d] for comparison could have met two out of the three reasons the State gave for striking Juror 5." Id.
The Wisconsin Supreme Court denied review. ECF No. 8-8. Benson then filed this federal habeas petition, where he renews his ineffective assistance-double jeopardy and Batson claims, requesting that this court find that the court of appeals vacate his convictions and sentences, and grant him a new trial. ECF No. 1 at 13.
Benson's petition arises under 28 U.S.C. § 2254. A district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). If a state court adjudicated a constitutional claim on the merits, a federal court may grant habeas relief only if the state court decision was contrary to, or involved an unreasonable application of, Supreme Court precedent or if the state court decision was based on an unreasonable determination of the facts in light of the evidence presented in the state proceeding. 28 U.S.C. § 2254(d). A petitioner challenging a factual determination shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
"[O]n habeas review, federal courts are usually limited to a deferential review of the reasonableness, rather than the absolute correctness, of a state court decision." Maier v. Smith, 912 F.3d 1064, 1069 (7th Cir. 2019) (citing Mosley v. Atchison, 689 F.3d 838, 844 (7th Cir. 2012)). "For purposes of reasonableness review, 'a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement.' " Mosley, 689 F.3d at 844 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). In reviewing the merits of a petition for habeas relief, I look to "the decision 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) (citing McFowler v. Jaimet, 349 F.3d 436, 446 (7th Cir. 2003)). In this case, that decision is from theWisconsin Court of Appeals. ECF No. 8-5. The appellate court need only have taken "the constitutional standard seriously and produced an answer within the range of defensible positions." Felton v. Bartow, 926 F.3d 451, 464 (7th Cir. 2019) (citing Taylor v. Bradley, 448 F.3d 942, 948 (7th Cir. 2006)).
To succeed on his claim of ineffective assistance of counsel, Felton must show his counsel's performance was deficient and he was prejudiced as a result. Felton, 926 F.3d at 463 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish deficient performance, the defendant must demonstrate that counsel's actions or inactions "were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. To establish prejudice, petitioner must demonstrate "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. However, the "Sixth Amendment does not require counsel... to press meritless arguments before a court." Peterson v. Douma, 751 F.3d 524, 533 (7th Cir. 2014) (quoting Lilly v. Gilmore, 988 F.2d 783, 786 (7th Cir.1993)).7
The Double Jeopardy Clause of the Fifth Amendment "bars retrial following a court-decreed acquittal." Evans v. Michigan, 568 U.S. 313, 318 (2013). An acquittal encompasses "any ruling that the prosecution's proof is insufficient to establish criminal liability for an offense." Id. (citations omitted). This includes "a ruling by the court that the evidence is insufficient to convict," a "factual finding [that] necessarily establish[es] thecriminal defendant's lack of criminal culpability," and any other "rulin[g] which relate[s] to the ultimate question of guilt or innocence." Id. at 319 (quoting U.S. v. Scott, 437 U.S. 82, 91, 98, and n. 11 (1978). These sorts of substantive rulings stand apart from procedural rulings that may also terminate a case midtrial, which we generally refer to as dismissals or mistrials. Id. Procedural dismissals include rulings on questions that "are...
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