Chisem v. Radtke

• Decision Date: 28 November 2022
• Docket Number: 20-CV-674-JPS
• Parties: JARMEL DONTRA CHISEM, Petitioner, v. DYLON RADTKE, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

JARMEL DONTRA CHISEM, Petitioner,
v.
DYLON RADTKE, Respondent.

No. 20-CV-674-JPS

United States District Court, E.D. Wisconsin

November 28, 2022

ORDER

J. P. STADTMUELLER, U.S. DISTRICT JUDGE.

1. INTRODUCTION

On April 30, 2020, Petitioner Jarmel Dontra Chisem (“Chisem”) filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. In 2015, Chisem was convicted by a jury in Milwaukee County Circuit Court of: (1) first-degree reckless homicide as a party to a crime while using a dangerous weapon, as a repeater; and (2) first-degree reckless endangerment of safety as a party to a crime while using a dangerous weapon, as a repeater. State v. Chisem, 927 N.W.2d 920 (Table), 2019 WL 1035482, at *1, *3 (Wis. Ct. App. Mar. 5, 2019).^[1] Thereafter, Chisem was sentenced to “a total of forty-seven years, bifurcated as thirty-three years of initial confinement and fourteen years of extended supervision.” Id. at *3. Chisem filed a Wis.Stat. § 974.02 post-conviction motion for a new trial pursuant to Wis.Stat. § 809.30, which the circuit court denied. Id. at *1. Chisem appealed from the order denying his motion for post-conviction

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relief as well as his judgment of conviction. Id. The Wisconsin Court of Appeals affirmed Chisem's judgment of conviction as well as the denial of his post-conviction motion. Id. at *7. The Wisconsin Supreme Court denied Chisem's petition for review. State v. Chisem, 933 N.W.2d 21 (Table) (Wis. 2019).

Chisem then filed his Section 2254 petition. ECF No. 1. On May 13, 2020, Magistrate Judge William E. Duffin issued a Report and Recommendation (“R&R”) in which he recommended dismissing Chisem's habeas petition because two of his five grounds for habeas relief were not exhausted. ECF No. 4; 28 U.S.C. § 2254(b)(1)(a). Specifically, Chisem had not exhausted his claims that: (1) appellate counsel was ineffective for failing to challenge trial counsel's failure to compel an alibi witness to testify; and (2) appellate counsel was ineffective for failing to challenge the sufficiency of the evidence. ECF No. 1 at 1, 12. Chisem acknowledged that these claims were not exhausted in his federal habeas petition and sought a stay so that he could finish the exhaustion process. Id. at 12.

In recommending dismissal, Magistrate Judge Duffin explained that Chisem's one-year deadline in which to file a habeas petition would not expire until October 8, 2020. ECF No. 4 at 2. Magistrate Judge Duffin recommended dismissing the petition entirely because, if Chisem wished to exhaust his remaining claims, he had “plenty of time in which to properly file ‘an application for State post-conviction or other collateral review with respect to the pertinent judgment or claim' in state court.” Id. at 2-3 (quoting 28 U.S.C. § 2244(d)(2)). Magistrate Judge Duffin explained that once Chisem filed his post-conviction motion, the one-year statute of limitations on federal habeas claims would be tolled. Id. Chisem timely objected to the R&R and sought a stay, but the Court overruled the

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objections, finding there was no good cause for Chisem's failure to exhaust and declining to issue a stay and abeyance. ECF No. 8. In lieu of outright dismissing the case, the Court gave Chisem a choice between: (1) dismissing the petition entirely so he could pursue his unexhausted claims in state court; or (2) proceeding only on the exhausted claims. Id. at 4.

Chisem filed a motion to reconsider, explaining that, in the time between Magistrate Judge Duffin's R&R and the Court's order adopting the R&R, he had filed a post-conviction motion pursuant to Wis.Stat. § 974.06, thus taking a step toward exhausting his unexhausted claims. ECF Nos. 9, 10. On January 12, 2022, the Court denied the motion for reconsideration, in part because Chisem's Wis.Stat. § 974.06 motion was filed late and “narrowly failed to toll the one-year statute of limitations,” which tolling Magistrate Judge Duffin had explained in his screening order. ECF No. 13. In the interim, Chisem had additionally filed a letter with the Court stating that he “will be proceeding only on [the] exhausted grounds.” Id. at 3 (quoting ECF No. 10). Given “the lack of good cause to permit the stay and abeyance,” as the Court had explained in its prior order, “as well as the lapse of the statute of limitations,” coupled with Chisem's letter, the Court permitted Chisem to proceed on his three exhausted claims from his amended petition: (1) that his trial should have been severed from that of his codefendant; (2) that his confrontation right was violated by the admission of his codefendant's statements; and (3) that the trial court improperly permitted a witness to testify. Id. at 3-4. The Court ordered a briefing schedule at that time. Id. at 4-5.

On January 27, 2022, Chisem filed a motion to waive unexhausted claims and to proceed with exhausted claims. ECF No. 16. On January 31, 2022, Respondent Dylon Radtke (“Respondent”) filed a response to the

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amended petition in accordance with the briefing schedule. ECF No. 17. On March 10, 2022, and on March 25, 2022, Chisem filed two separate motions for an extension of time to file his brief in support of the amended petition. ECF Nos. 18, 19. Chisem filed his brief in support of the amended petition on April 8, 2022, which was eight days past the date set in the briefing schedule. ECF No. 20. On August 12, 2022, the Court denied Chisem's motion to waive unexhausted claims and to proceed on the three exhausted claims as moot, finding that “[t]he Court's January 12, 2022 order detailed this specific outcome and therefore [Chisem's] request is moot.” ECF No. 28 at 3. The Court further retroactively granted Chisem's motions for extensions of time and accepted his April 8, 2022 brief as timely filed. Id.

Thereafter, Chisem refiled his brief on September 13, 2022, perhaps understanding the Court's August 12, 2022 order as instructing him to refile the brief. ECF No. 29. Respondent moved to strike the refiled brief, which Chisem opposed on the grounds that the Court had granted him an extension of time to file his brief. ECF No. 31. Chisem is correct that the Court granted him an extension of time to file his brief, but in so doing, the Court accepted his late-filed April 8, 2022 brief; it did not order him to refile the brief. Thus, the Court will consider in this Order the parties' fully briefed positions as laid out in: (1) Chisem's April 8, 2022 brief in support, ECF No. 20; (2) Respondent's June 3, 2022 brief in opposition, ECF No. 21; and (3) Chisem's July 5, 2022 brief in reply, ECF No. 23. Consequently, the Court will deny as moot Respondent's motion to strike, ECF No. 30.

Separately, on July 13, 2022, Chisem filed a motion to appoint counsel and for an evidentiary hearing, ECF No. 24, which Respondent opposed on July 19, 2022, ECF No. 25. That motion and the amended merits petition are now before the Court. For the reasons explained below, the

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Court finds that Chisem's amended petition is without merit and, therefore, will deny it. The Court will further deny Chisem's motion to appoint counsel and Chisem's motion for evidentiary hearing. ECF No. 24.

2. BACKGROUND

Chisem's charges and conviction stem from a shooting that occurred on June 6, 2014. Chisem, 2019 WL 1035482, at *1. Raymond Harris (“Harris”) was found lying face down in a pool of blood with multiple gunshot wounds and was pronounced dead at the scene. Id. Another individual, J.W., had been shot in the abdomen but survived. Id.

While investigating the shooting, detectives reviewed surveillance footage and discovered that the shots were fired from a silver Saturn SUV. Id. at *2. Detectives spoke with a witness, Fabian Edmond (“Edmond”), whose vehicle was also seen in the footage. Id. Edmond identified the silver Saturn as having been driven by Chisem earlier on the day of the shooting with Chisem's co-defendant Howard Davis (“Davis”) in the passenger seat. Id. Edmond also stated that he heard the shots and that they had come from the silver Saturn. Id. Finally, Edmond said that the day after the shooting, Chisem and Davis came to his place of employment and that Davis instructed Edmond to say he did not know anything if the police questioned him about the shooting. Id. at *2, *4.

Detectives also spoke with another witness, Earnest Davis (“Earnest”), who was with Edmond at the time of the shooting. Id. at *2. Earnest stated that he had seen Chisem driving the silver Saturn the day before the shooting. Id. He further informed detectives that he saw shots being fired from that vehicle. Id. Finally, he told police that he saw Howard

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Davis^[2] and Chisem shortly after the shooting. Id. Howard Davis was sweating and threw his shirt into the garbage. Id. Chisem told Earnest not to speak about the incident. Id. Harris's sister, Deion Smith (“Smith”), additionally told detectives that Harris told her that Harris had shot Howard Davis in the summer of 2013. Id.; ECF No. 17-2 at 24.

Police later located the silver Saturn, which belonged to Chisem's girlfriend. Chisem, 2019 WL 1035482, at *2. Chisem and Davis were arrested and charged. Id. While Chisem and Davis were in jail awaiting trial, detectives received information from Jamil Tubbs (“Tubbs”), an inmate incarcerated with Chisem and Davis. Id. Tubbs stated that he overheard Chisem and Davis talking and laughing about the shooting. Id. Tubbs also said that he heard Davis tell Chisem that Chisem “should have put the truck in the garage to hide it” and that he heard Davis state that he (Davis) had shot J.W. Id. Another inmate incarcerated with Chisem and Davis, Willie Nelson (“Nelson”), told police that he had several conversations with Davis regarding the shooting. Id. Specifically, Nelson informed police that Davis told him that Davis “had been jumped and been shot” previously by Harris, which was Davis's “motive for shooting Harris.” Id. at *2, *4...