Dodson v. Cromwell

Docket Number22-cv-1492-bhl
Decision Date22 August 2023
PartiesOCTAVIA DODSON, Petitioner, v. DAN CROMWELL, Respondent.
CourtU.S. District Court — Eastern District of Wisconsin



DAN CROMWELL, Respondent.

No. 22-cv-1492-bhl

United States District Court, E.D. Wisconsin

August 22, 2023



On March 25, 2016, an unidentified person rear-ended petitioner Octavia Dodson's car. (ECF No. 9 at 2; ECF No. 8 at 6.) Dodson exited his vehicle and drew a semi-automatic pistol (for which he had a valid concealed-carry permit) as the other car drove away. (ECF No. 9 at 2.) Dodson attempted to follow the departing car to get a license plate number, but ultimately lost sight of it. (ECF No. 8 at 6.) As he drove in search of the car that hit him, he swapped out his pistol's ten-round magazine for an extended seventeen-round magazine. (ECF No. 9 at 2.) When Dodson finally spotted the car he thought he was looking for, he followed it until it pulled over, at which point both Dodson and the other driver, Deshaun Freeman, exited their vehicles. (Id.) Dodson maintains he saw Freeman's hands moving near his pockets and that Freeman was shouting obscenities, causing Dodson to fear for his life and fire six rounds from his pistol. (ECF No. 8 at 6.) Tragically, three of those bullets struck Freeman, who died at the scene. (Id. at 6-7.) Even more tragically, police later determined that Freeman was both unarmed and not in fact the driver of the car that had rear-ended Dodson. State v. Dodson, 969 N.W.2d 225, 227 (Wis. 2022).

The State of Wisconsin charged Dodson with second-degree intentional homicide, with unnecessary defensive force as a mitigating circumstance. Id. The prosecutor also included “use of a dangerous weapon” as a penalty enhancer. Id. Dodson ultimately pled guilty to second-degree intentional homicide and the state dropped the enhancer as part of the plea deal. (ECF No. 7-6 at 4.) At the sentencing hearing, the judge said he was “completely baffled as to why” this crime occurred and there was no “rational way of trying to explain it.” (Id. at 30.) He also noted the


factors he had to consider in sentencing Dodson, including the serious nature of the offense, Dodson's character, and the need to protect the public. (Id.) He went on to say:

I can tell you this, Mr. Dodson, that in my experience as a judge, I have seen over time how individuals when they are possessing a firearm, how that in some way changes them. It changes how they view the world. It changes how they react and respond to people. I know that this is only speculation on my part, but I do strongly feel that the day that you applied for that concealed carry permit and went out and purchased that firearm, and that extended magazine, whether your rational beliefs for possessing it, whether you felt the need to somehow arm yourself and protect yourself from essentially the crime that is going on in this community I think on that day set in motion this circumstance. It is clear to me, Mr. Dodson, that for whatever reason, and it appears that it is a distorted, misguided belief of the world that somehow Mr. Freeman was a threat that required you, in essence, to terminate his life. Makes no sense

(Id. at 30-31.) After this and other explanations of his thinking, the judge sentenced Dodson to 14 years of initial confinement and six years of extended supervision. (Id. at 34.)

Dodson challenged the sentencing judge's statements in a postconviction motion, arguing that the judge had improperly relied on Dodson's lawful gun ownership to enhance his sentence. The postconviction court found that the sentencing judge likely did rely on the challenged comments, but, taken in context, the statements did not rise to the level of an improper sentencing factor, and denied Dodson's request for resentencing. (ECF No. 7-1 at 35, 37.) The Wisconsin Court of Appeals affirmed. See State v. Dodson, 949 N.W.2d 879, 2020 WL 4999697 (Wis. Ct. App. Aug. 25, 2020). In affirming, the court of appeals concluded that Dodson had not shown by clear and convincing evidence that the sentencing judge actually relied on an improper factor, echoing the postconviction court's language that taken “in context, ... the trial court's comments about Dodson's unlawful use of his firearm were not improper” because “[t]he trial court never stated, explicitly or implicitly, that it was basing its sentence on the fact that Dodson chose to exercise his carry a concealed weapon.” Id. at *5. The Wisconsin Supreme Court granted Dodson's petition for review and affirmed the court of appeals' decision, concluding that Dodson had failed to prove by clear and convincing evidence that the sentencing court actually relied on an improper sentencing factor. Dodson, 969 N.W.2d at 231. On December 12, 2022, Dodson petitioned this Court for a writ of habeas corpus.



To obtain federal habeas relief, Dodson must show that his state court custody is “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). To carry this burden, he must show that the Wisconsin courts rejected his claims “in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “in a decision that 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)(2).

A federal habeas court reviews “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) (citation omitted). Thus, Dodson must show that the Wisconsin Supreme Court either based its decision on an unreasonable determination of the facts or that its decision was contrary to or involved an unreasonable application of clearly established federal law. Respondent argues that Dodson has done neither. The Court agrees. Accordingly, Dodson's petition will be denied.


Dodson's habeas petition identifies a single ground for relief: that the sentencing court improperly relied on his status as a lawful gun owner when sentencing him, in violation of his Second Amendment rights. (ECF No. 1 at 6.) He frames his habeas challenge in terms of both an unreasonable determination of the facts and an unreasonable application of federal law. He argues that the Wisconsin Supreme Court based its denial of his challenge to his sentence “on an unreasonable determination of fact.” (ECF No. 10 at 10.) He also argues that the Wisconsin Supreme Court “ruled contrary to or unreasonably appl[ied] clearly” established United States Supreme Court caselaw. (Id. at 13.) Under either approach, Dodson has failed to establish his right to habeas relief.

I. The Wisconsin Supreme Court Did Not Unreasonably Determine that the Trial Court Did Not Rely Upon an Improper Sentencing Factor.

Dodson first points out that, “[c]ritically,” the postconviction judge, while denying his motion, “found the sentencing judge's comments on gun ownership were not merely passing remarks but reflected his reasons for imposing the sentence.” (ECF No. 8 at 10.) Respondent argues that “the Wisconsin Supreme Court clearly did not adopt any such findings but found that ‘the circuit court neither exhibited an improper predisposition against all gun owners nor actually relied on Dodson's gun ownership or CCW permit as part of his sentence.'” (ECF No. 9 at 9)


(citing Dodson, 969 N.W.2d at 225). In any case, Respondent argues, the Wisconsin Supreme Court's “finding that the sentencing court did not actually rely on Dodson's lawful gun ownership” has not been overcome by clear and convincing evidence, thus requiring Dodson's petition to fail “without further analysis.” (Id. at 9-10.) In his reply, Dodson reframes his argument by citing Section 2254(d)(2) and criticizing the Wisconsin Supreme Court for “downplaying and twisting the sentencing judge's remarks,” constituting an unreasonable finding of fact. (ECF No. 10 at 10.) Because “[t]he sentencing judge imbued his entire sentencing rationale with the fact of Dodson's lawful gun ownership,” Dodson argues, the Wisconsin Supreme Court's decision “was so lacking in justification” that Dodson “has presented clear and convincing evidence that the sentencing court did actually rely on [his] lawful gun ownership” in violation of Section 2254(d)(2). (Id. at 12.)

A. The Wisconsin Supreme Court's Statements Were Not Factual Findings.

As an initial matter, Dodson's argument is probably not best framed as Section 2254(d)(2) argument, because, as an appellate court, the Wisconsin Supreme Court did not make any factual findings. To prevail under Section 2254(d)(2), Dodson must show by clear and convincing evidence that the Wisconsin Supreme Court based its decision on an unreasonable determination of the facts. Goudy v. Basinger, 604 F.3d 394, 399 (7th Cir. 2010) (citing Ward v. Sternes, 334 F.3d 696, 704 (7th Cir. 2003)). Federal courts presume the state court's factual findings are correct: “The presumption of correctness also applies to factual findings made by a state court of review based on the trial record.” Ben-Yisrayl v. Buss, 540 F.3d 542, 546 (7th Cir. 2008) (citing Sumner v. Mata, 499 U.S. 539, 546-47 (1981)).

The line between a court's finding of facts and legal...

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