Braun v. Powell, No. 97-C-0423.

CourtUnited States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
Writing for the CourtAdelman
Citation77 F.Supp.2d 973
PartiesKathleen A. BRAUN, Petitioner, v. Barbara POWELL, Warden, Robert E. Ellsworth Correctional Center, Respondent.
Docket NumberNo. 97-C-0423.
Decision Date13 December 1999

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77 F.Supp.2d 973
Kathleen A. BRAUN, Petitioner,
v.
Barbara POWELL, Warden, Robert E. Ellsworth Correctional Center, Respondent.
No. 97-C-0423.
United States District Court, E.D. Wisconsin.
December 13, 1999.

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Robert R. Henak, Fox Point, WI, for plaintiff.

Daniel J. O'Brien, (Wis. Dept. of Justice), Madison, WI, for defendant.

DECISION AND ORDER

ADELMAN, District Judge.


Petitioner Kathleen A. Braun seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of her Wisconsin state court conviction. On December 20, 1976, after a jury trial in Milwaukee County Circuit Court, Braun was convicted of first-degree murder as a party to the crime and sentenced to life imprisonment. In her petition for habeas corpus petitioner alleges that in the homicide trial her federal constitutional rights were violated in three respects: (1) she was denied the right to a public trial when the judge excluded a member of the public from the courtroom during trial; (2) she was denied due process because the prosecutor misrepresented to her counsel

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and the jury the plea agreement with the state's principal witness, improperly cross-examined her, and made an improper statement on rebuttal; and (3) she was denied the right to confront witnesses against her when her counsel's cross-examination of two state witnesses was improperly restricted and when the court refused to give certain requested jury instructions.

I. FACTUAL BACKGROUND1

In December 1973 Earl Jeffrey Seymour was arrested for the murder of a Milwaukee drug trafficker, William Weber. Weber had been shot three times, his arms severed at the wrists and his body disposed of in Cook County, Illinois. Seymour entered into an agreement with the district attorney pursuant to which he pled guilty to second-degree murder and agreed to testify against petitioner and her husband, Tim Braun.2

The two primary witnesses at petitioner's trial were Seymour and petitioner. Seymour, a drug dealer and user, testified that Weber threatened to stop supplying drugs to him and the Brauns. As a result, he and the Brauns decided to kill Weber. Seymour testified that on November 12, 1973 Weber went to an apartment to collect drug money. Petitioner and Seymour were at the apartment. Seymour said he led Weber into a bedroom where Kathleen Braun waited; Seymour then shot Weber once in the back and, after Weber fell to the floor, once in the heart. According to Seymour petitioner then took the gun and shot Weber in the head to make sure he was dead. Petitioner and Seymour placed the body in petitioner's car and took it to Seymour's father's home in Racine. Thereafter, the body was dismembered and transported to Illinois.

At trial, Seymour and the prosecutor described Seymour's plea agreement as involving a state recommendation of incarceration for Seymour. The prosecutor, however, had advised Seymour prior to petitioner's trial that the state's position regarding incarceration would be reconsidered after the trial. The State did reconsider, and took no position regarding incarceration at his sentencing. Seymour was sentenced to probation.

Petitioner testified at her trial and denied participation in the killing and dismemberment of Weber.

During the trial the court observed that a Mr. Mane, who had been on the venire panel but had been excused after voir dire, was present in the courtroom watching the trial. Apparently, he had been excused from service on the jury because he said that he was friendly to the defense. The court excluded him from the courtroom during the trial.

Additional facts will be set forth in my discussion of the issues in the case.

II. POST-CONVICTION HISTORY

On December 20, 1976, petitioner was sentenced to life imprisonment for the homicide conviction. Under Wis.Stat. § 974.02 a Wisconsin defendant may, prior to appealing, move the trial court to address claims of error. See Howard B. Eisenberg, Post-Conviction Remedies in the 1970s, 56 Marq.L.Rev. 69 (1972). If the alleged error is one that the trial court could have corrected by granting a new trial, a motion for a new trial under § 974.02 is a necessary predicate for an appeal. Thiesen v. State, 86 Wis.2d 562, 564, 273 N.W.2d 314 (1979). On August 4, 1977, pursuant to § 974.02, petitioner filed a post-conviction motion alleging various trial errors. On December 22, 1977, before the trial court decided the motion, petitioner escaped from prison. On May 1, 1978, the trial judge orally dismissed her

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motion. Petitioner did not appeal the order of dismissal.

After petitioner was involuntarily returned to custody in 1984,3 she filed a motion under Wis.Stat. § 974.06 challenging her conviction on constitutional grounds. Under § 974.06 a defendant may collaterally challenge a conviction after the time to appeal has expired. Section 974.06 is the Wisconsin equivalent of the federal habeas corpus statute; it was taken directly from 28 U.S.C. § 2255. Wis.Stat.Ann. § 974.06 cmt. L.1969.

Braun's § 974.06 motion included some claims she had included in her § 974.02 motions — including her present claims regarding her rights to a public trial and to confront witnesses — and one new claim of prosecutorial misconduct based on the failure to disclose the terms of Seymour's plea bargain. The circuit court denied petitioner's § 974.06 motion, and petitioner appealed.

Prior to deciding the case the court of appeals directed that an evidentiary hearing be held to determine the reasons underlying Judge Raskin's dismissal of petitioner's § 974.02 post-conviction motion. In response, the parties entered into the following stipulation, obviating the need for the hearing:

The state ... had filed a written motion to dismiss Ms. Braun's post-conviction motions based upon her escape from Taycheedah Correctional Institution in December 1977. Judge Raskin heard the motion on May 1, 1978. The sole basis presented by the state for dismissal of Ms. Braun's motions was her escape. At no point during the proceeding did the state argue the underlying merits of Ms. Braun's motions.

Judge Raskin orally granted the state's motion to dismiss based upon Ms. Braun's escape. At no time during the proceeding or when setting forth his order did Judge Raskin ever discuss or purport to decide the underlying merits of Ms. Braun's motions, relying instead solely upon her escape as the basis for dismissal.

While dismissing Ms. Braun's motions, Judge Raskin orally ordered that, if Ms. Braun returned within sixty days, he would set aside the dismissal, reopen her motions, hear arguments on the merits of those motions and proceed to decide those motions on their merits.

(Answer, Ex. D, App.10-11.)

The court of appeals affirmed the denial of petitioner's § 974.06 motion, holding that Judge Raskin's dismissal of petitioner's § 974.02 motion barred her from raising her claims in a subsequent § 974.06 motion. See State v. Braun, 178 Wis.2d 249, 504 N.W.2d 118 (Ct.App.1993).

The supreme court granted review. Petitioner did not contest the dismissal of her initial § 974.02 motion based on her escape. Rather, she argued that the dismissal of the § 974.02 motion did not bar collateral relief under § 974.06 after she was returned to custody. Petitioner argued that Judge Raskin's dismissal was not on the merits and did not finally adjudicate the issues raised. Petitioner also asserted, relying on Bergenthal v. State, 72 Wis.2d 740, 242 N.W.2d 199 (1976) (hereinafter "Bergenthal"), that even if Judge Raskin's decision was on the merits, an unappealed § 974.02 decision did not bar relief in a subsequent § 974.06 motion. In addition, petitioner argued that, in any case, one of her prosecutorial misconduct claims had not been raised in her § 974.02 motion and thus was not adjudicated by the dismissal of that motion.

The supreme court declined to consider the merits of petitioner's claims and held that (1) the dismissal of the § 974.02 motion based on her escape finally adjudicated the claims raised in that motion so as to prevent petitioner from raising them in a subsequent § 974.06 motion; and (2) with respect to the claim not raised in the original

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§ 974.02 motion she had failed to allege a "sufficient reason" pursuant to Wis. Stat. § 974.06(4) for not previously alleging it, and, therefore, based on the court's retroactive application of another decision issued the same day, State v. Escalona-Naranjo, 185 Wis.2d 168, 517 N.W.2d 157 (1994), review of that claim was also barred. See State v. Braun, 185 Wis.2d 152, 516 N.W.2d 740 (1994) (hereinafter "Braun").

III. PROCEDURAL DEFAULT

Federal habeas corpus petitioners who fail to comply with a state procedural rule while exhausting their claims in state court may be barred from raising those claims in federal court. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). However, non-compliance with a state procedural rule cannot bar federal review unless the state rule is "adequate to prevent federal collateral review." Liegakos v. Cooke, 106 F.3d 1381, 1385 (7th Cir.), reh'g denied, 108 F.3d 144 (7th Cir.1997). A state rule is adequate to prevent federal review only if it was a "firmly established and regularly followed state practice" at the time the defendant allegedly failed to follow it. James v. Kentucky, 466 U.S. 341, 348-51, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984). The rule must have been in place and enforced at the time of the alleged non-compliance. Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991). A rule of procedure is not adequate to prevent federal collateral review when the defendant could not be "deemed to have been apprised of its existence" at the time the rule was broken. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 457, 78 S.Ct....

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2 practice notes
  • Dennis v. Brown, No. C 98 21027 JF.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 10, 2005
    ...occurring in another judicial forum that had no effect on the forum in which remedies are withheld, see, e.g., Braun v. Powell, 77 F.Supp.2d 973, 982 n. 5 (E.D.Wis.1999), rev'd on other grounds, 277 F.3d 908, 915-16 (7th Cir.2002); see also Ortega-Rodriguez v. United States, 507 U.S. 234, 1......
  • Braun v. Powell, No. 00-1096
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 18, 2000
    ...Ms. Braun brought a petition for habeas corpus in the district court. The court granted the petition. See Braun v. Powell, 77 F. Supp.2d 973 (E.D. Wis. 1999). The court first held that Ms. Braun's escape had not caused an abandonment of her constitutional claims. Addressing the merits of th......
2 cases
  • Dennis v. Brown, No. C 98 21027 JF.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 10, 2005
    ...occurring in another judicial forum that had no effect on the forum in which remedies are withheld, see, e.g., Braun v. Powell, 77 F.Supp.2d 973, 982 n. 5 (E.D.Wis.1999), rev'd on other grounds, 277 F.3d 908, 915-16 (7th Cir.2002); see also Ortega-Rodriguez v. United States, 507 U.S. 234, 1......
  • Braun v. Powell, No. 00-1096
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 18, 2000
    ...Ms. Braun brought a petition for habeas corpus in the district court. The court granted the petition. See Braun v. Powell, 77 F. Supp.2d 973 (E.D. Wis. 1999). The court first held that Ms. Braun's escape had not caused an abandonment of her constitutional claims. Addressing the merits of th......

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