Brown v. Jess

• Decision Date: 22 February 2021
• Docket Number: 19-cv-1010-bbc
• Citation: 521 F.Supp.3d 792
• Court: U.S. District Court — Western District of Wisconsin
• Parties: George L. BROWN, Petitioner, v. Cathy A. JESS, Respondent.

521 F.Supp.3d 792

George L. BROWN, Petitioner,

v.Cathy A. JESS, Respondent.

19-cv-1010-bbc

United States District Court, W.D. Wisconsin.

Signed February 22, 2021

Thomas Brady Aquino, Wisconsin State Public Defender, Madison, WI, for Petitioner.

Aaron R. O'Neil, Wisconsin Department of Justice, Madison, WI, Wisconsin Department of Justice, for Respondent.

OPINION AND ORDER

BARBARA B. CRABB, District Judge

Petitioner George L. Brown, appearing by counsel, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. He challenges a 2015 judgment of conviction for first-degree reckless injury on the ground that the state trial court failed to properly instruct the jury regarding the "castle-doctrine" version of Wisconsin's self-defense instruction. The petition is briefed and ready for decision. For the reasons that follow, I conclude that petitioner has failed to show that he is in custody in violation of the Constitution or federal law. Accordingly, his petition will be denied.

BACKGROUND

The following facts are drawn from the petition and state court records provided by petitioner and the state.

In Dane County case number 2014CF1393, petitioner George Brown was charged with attempted first-degree intentional homicide and first-degree reckless injury, both with a deadly weapon, following a physical altercation in which petitioner stabbed the victim in the head. The underlying facts accused petitioner of stabbing his second cousin during a barbeque at petitioner's home. (The victim survived, but he will likely require lifelong support because he has numerous cognitive and physical impairments.) Petitioner alleged that he acted in self defense, and he pleaded not guilty to the charges and proceeded to a jury trial.

The testimony at trial established that during a barbeque at petitioner's house, an argument between petitioner and the victim escalated into a scuffle in petitioner's garage. Friends intervened to separate the two men. The victim's wife and a friend walked the victim to his car, which was parked on the street in front of petitioner's house, but the argument continued. Petitioner and the victim took off their shirts and started to throw things at each other. The victim took off his shoes and threw them at petitioner. Petitioner threw the victim's shoes back at him, and then proceeded to throw scrap wood from the top of the driveway toward the victim.

What happened next was the central dispute at trial. The state's theory at trial was that, while the victim's wife was trying to get the victim into his car, petitioner retrieved a knife from his house, ran down the driveway and attacked the victim in the street. The victim's wife testified that the victim collapsed at the end of the driveway after petitioner stabbed him in the head with a knife. Dkt. #5-10 at 91.

Petitioner's version of events was different. Petitioner testified that after he threw sticks toward the victim, the victim picked up two of the sticks and came up petitioner's driveway toward petitioner. Petitioner was afraid that the victim would attack him with the sticks, so he picked up a knife from the grill outside the garage. The victim raised his hands with the wood to strike petitioner and petitioner swung his knife at the victim. The victim then walked back down the driveway toward his car and collapsed. Petitioner testified that he was not aware until later that he had stabbed the victim.

Petitioner's trial counsel requested that the jury be read the "castle-doctrine" version of Wisconsin's self-defense instruction, which forbids the jury from considering a defendant's opportunity to retreat into the defendant's home when assessing the reasonableness of the defendant's use of force in self-defense. Dkt. #5-5 at 5-6. The court concluded that petitioner was entitled to a self-defense instruction, but not the castle-doctrine instruction, because that instruction "was not intended to apply in the situation of a drunken family barbeque." Dkt. #5-13 at 134-35. The court also found that there was no evidence that the victim was attempting to forcibly enter petitioner's dwelling at the time petitioner stabbed the victim. The court read to the jury the standard self-defense instruction on "retreat," which allowed the jury to consider whether the defendant had the opportunity to retreat safely, whether such retreat was feasible, and whether the defendant knew of the opportunity to retreat. Dkt. #5-14 at 18-19. During closing arguments, the prosecutor argued that even if the jury believed petitioner's version of the events, petitioner had had a "feasible" way of avoiding any confrontation by running into his house. Id. at 96-97.

The jury found petitioner guilty of first-degree reckless injury with a deadly weapon, but acquitted him on the charge of attempted first-degree intentional homicide. Id. at 115-16. The court sentenced petitioner to 12 years of imprisonment to be followed by 15 years of extended supervision.

Petitioner filed a post-conviction motion for a new trial. He argued that the court erred by refusing to read the modified retreat language in the castle-doctrine instruction. Dkt. #5-5. The court denied the motion after an evidentiary hearing, holding that it did not err because petitioner had not produced sufficient evidence to warrant the castle-doctrine instruction. The court also concluded that even if it had erred, the error was harmless because petitioner's testimony that he was not the aggressor was "incredible." Id. at 6. Petitioner filed a motion for reconsideration, which was also denied. He then appealed.

The state conceded on appeal that petitioner had produced sufficient evidence to warrant the castle-doctrine version of the self-defense instruction, based on petitioner's testimony that the victim had come onto his driveway brandishing two pieces of wood. Dkt. #5-5 at 6. The Wisconsin Court of Appeals agreed, but it upheld the conviction anyway because it found the error to be harmless. The court concluded that the jury would have found petitioner guilty of first-degree reckless injury even if the jury had been given the option of the castle-doctrine instruction, because no reasonable jury would have believed petitioner's version of events. Id. at 7. Petitioner petitioned the Wisconsin Supreme Court for review, arguing that the failure to read the correct self-defense instruction violated petitioner's due process rights and that the court of appeals's harmless error analysis violated petitioner's Sixth Amendment right to a jury trial. Dkt. #5-6 at 14-20. The state supreme court denied the petition for review. Dkt. #5-8.

OPINION

Petitioner contends that he is entitled to habeas relief because the trial court violated his right to due process by refusing to read the castle-doctrine version of Wisconsin's self-defense instruction. Petitioner argues that if the court had read the correct self-defense instruction, the jury would have been precluded from considering his ability to retreat into his home, and it is likely that the jury would have acquitted hima of first-degree reckless injury.

The state makes several arguments in opposition. It argues first that petitioner's due process claim is defaulted because he failed to present it to the state courts. Second, the state argues that an error in a state-law self-defense jury instruction cannot support a constitutional due process claim. Third, the state argues that even if petitioner has shown a due process violation, the constitutional error was harmless.

A federal court may grant habeas relief following an adjudication on the merits in state court only if that decision (1) was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. §§ 2254(d)(1)–(2) ; Czech v. Melvin, 904 F.3d 570, 573 (7th Cir. 2018). The Wisconsin Court of Appeals issued the last reasoned decision on the merits of petitioner's claim, so its analysis deserves deference so long as that analysis is reasonable. Gage v. Richardson, 978 F.3d 522, 529 (7th Cir. 2020).

A. Procedural Default

The state's first argument is that petitioner failed to present his due process claim to the state courts and therefore has procedurally defaulted the claim.

To properly raise any issue on habeas review, a petitioner must have "fairly presented" the issue through one complete round of state court review. Richardson v. Lemke, 745 F.3d 258, 268 (7th Cir. 2014). In this instance, it is undisputed that petitioner argued in the state courts that the jury should have been instructed regarding Wisconsin's castle-doctrine. However, the state argues that petitioner did not present his jury instruction argument to the state courts as a federal due process claim; instead, petitioner presented only his argument that he was entitled to the castle-doctrine instruction under state law.

A federal habeas court cannot correct errors of state law. Estelle v. McGuire, 502 U.S. 62, 67–68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) ; Arnold v. Dittmann, 901 F.3d 830, 835 (7th Cir. 2018). Thus, to preserve the issue for federal habeas review, petitioner was required to present his jury instruction argument to the state courts as a federal constitutional claim. Perruquet v. Briley, 390 F.3d 505, 512 (7th Cir. 2004). This means that petitioner must have "sufficiently alerted" the state court "to the federal constitutional nature of the issue." Whatley v. Zatecky, 833 F.3d 762, 771 (7th Cir. 2016). The Court of Appeals for the Seventh Circuit has identified four factors to consider in determining whether a petitioner has fairly presented a constitutional claim in state court and avoided default: (1) whether the petitioner relied on federal cases that engage in a constitutional analysis; (2) whether the petitioner relied on state cases...