Gish v. Dittmann

• Decision Date: 14 December 2017
• Docket Number: 15–cv–730–jdp
• Parties: Christopher Randolph GISH, Petitioner, v. Michael DITTMANN, Respondent.
• Court: U.S. District Court — Western District of Wisconsin

291 F.Supp.3d 864

Christopher Randolph GISH, Petitioner,
v.
Michael DITTMANN, Respondent.

15–cv–730–jdp

United States District Court, W.D. Wisconsin.

Signed December 14, 2017

291 F.Supp.3d 868

Shelley M. Fite, Federal Defender Services of Wisconsin, Inc., Madison, WI, for Petitioner.

Robert G. Probst, State of Wisconsin Department of Justice, Madison, WI, for Respondent.

OPINION & ORDER

JAMES D. PETERSON, District Judge

Pro se petitioner Christopher Randolph Gish is currently in the custody of the Wisconsin Department of Corrections at the Columbia Correctional Institution, following his plea of guilty and conviction of first-degree reckless homicide in Milwaukee County Case No. 12–CF–3564. Gish admits that he killed his girlfriend. But he seeks a writ of habeas corpus under 28 U.S.C. § 2254, arguing that the Wisconsin Court of Appeals unreasonably rejected his claim that his trial counsel was ineffective because counsel failed to investigate and inform Gish of a potential defense of involuntary intoxication. If Gish had known about that defense, he says, he wouldn't have accepted the state's plea deal.

Gish's petition is now fully briefed and ready for a decision. After considering the parties' submissions, I conclude that the Wisconsin Court of Appeals unreasonably applied federal law regarding ineffective assistance of counsel. I will hold an evidentiary hearing to determine whether Gish is entitled to habeas relief, and I will appoint counsel to represent him at the hearing.

BACKGROUND

I draw the following facts from the petition, briefs, and state court records.

In the early morning of July 14, 2012, police found Christopher Gish wandering near General Mitchell Airport in Milwaukee, Wisconsin, after he had crashed his girlfriend's minivan. Soon after, police found Gish's girlfriend, Margaret Litwicki, dead in Gish and Litwicki's bedroom. She had been stabbed several times in the head, neck, and chest. Upon questioning,

291 F.Supp.3d 869

Gish admitted to stabbing Litwicki, explaining that he became upset when she told him she was having an affair and threatened to leave him and take their children with her.

Gish was charged with first-degree intentional homicide in Milwaukee County Case No. 12–CF–3564. He was appointed a lawyer, Nathan Opland–Dobs, to represent him. On November 19, 2012, Gish pleaded guilty to a reduced charge of first-degree reckless homicide. The circuit court sentenced Gish to 40 years' confinement and 20 years' extended supervision. Gish did not file a postconviction relief motion.

On direct appeal, Gish's appointed counsel, Michael Backes, filed a no-merit report under Wis. Stat. § (Rule) 809.32, which Gish contested. Gish contended that Opland-Dobs was ineffective for failing to investigate and inform Gish of a potential involuntary intoxication defense under Wis. Stat. § 939.42(1). He pointed to police reports that Gish was found "wandering on the train tracks[,] soaking wet[,] unsteady on his feet[, and] unable to answer any questions" shortly after the murder, leading the first responders to take him to the hospital, where he continued to appear "disoriented." Dkt. 12–5, at 29, 34. The reports indicate that when Gish began responding to the paramedics' questions, he said things like "All I saw was red," "I blacked out," and "She's upstairs." Id. at 29. When asked where he was, Gish responded, "It's midnight. You are in my bedroom, why are you in my room?" Id. at 35. And records of the interrogation indicated that Gish said "he must have blacked out" because he didn't remember how he got to the hospital after going to sleep the previous night. Id. at 40. But Gish did remember taking Lamictal hours before the murder and Xanax a day or two before that. Id. at 38. Once the interrogator told Gish what happened, he began to remember the events of the previous night. He explained: "[I] lost my mind and I felt at the time it was the right thing to do." Id. at 44.

Had Opland–Dobs investigated Gish's symptoms, Gish argued, he would have discovered that five days before the murder, a doctor had prescribed Gish Xanax and Lamictal and instructed him to take Xanax at a dose two to four times the recommended amount for a first-time user. Gish provided pharmacy records that confirm these prescriptions. See id. at 81. Gish points to several medical reference sources indicating that side effects of Xanax include fear, confusion, hallucination, rage, disinhibition, hostility, and mania. See id. at 53–70. Had Opland–Dobs told him that he could mount an involuntary intoxication defense, Gish argued, he wouldn't have accepted the plea deal that he did.

The Wisconsin Court of Appeals acknowledged that "[t]he effects of prescription drugs may form the basis for an involuntary intoxication defense where they are taken according to prescription." Dkt. 12–7, at 6. But, it explained, the documents submitted by Gish in support of his argument (the pharmacy records and police reports) were outside the appeal record and therefore "not properly before" the court. Id. at 7. It went on, "In any event, we are not convinced that this issue has arguable merit." Id. It cited Backes's no-merit report concerning "the conclusory nature of the claimed effects of Xanax on Gish," id. , and reprinted one long passage from the no-merit report, which included the following argument: "Mr. Gish had no problem recalling the series of events leading up to his [‘]blind rage[’] and the brutal stabbing death of the victim. Mr. Gish never claimed to have been in a drug induced stupor at anytime.... Mr. Gish ... has never named a witness which would support his claim as to an intoxicated state of mind. No witness as to his

291 F.Supp.3d 870

taking Xanax, how much or at what time. No witness to any irrational conduct related to his past consumption of any such drug. " Id. at 7–8 (first alteration in original). The court concluded, "According to Gish's appellate counsel, a claim that Gish's trial counsel was ineffective for not investigating is without merit ‘in that there wasn't anything to investigate.’ Based on the record before us, we agree." Id. at 8.

The Wisconsin Supreme Court denied Gish's petition for review. Gish now seeks federal habeas corpus relief under 28 U.S.C. § 2254.

ANALYSIS

Gish contends that he is entitled to habeas relief because the Wisconsin Court of Appeals unreasonably applied Supreme Court precedent concerning ineffective assistance of counsel when it concluded that his ineffective assistance claim was without any arguable merit. Section 2254(d) allows courts to grant state prisoners' petitions for habeas corpus when the state court's adjudication of the merits of a claim for relief "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law." But before reviewing Gish's claim under § 2254(d), I must address any potential procedural grounds barring review.

A. Procedural bars

I'll begin the discussion of potential procedural bars with an explanation of the procedural posture presented in this case. Criminal defendants in Wisconsin have "a statutory right to seek postconviction relief through a postconviction motion or an appeal." State ex rel. Kyles v. Pollard , 2014 WI 38, ¶ 21, 354 Wis. 2d 626, 847 N.W.2d 805. Postconviction motions are "filed in the trial court in which the conviction was adjudicated" and concern claims such as ineffective assistance of counsel—claims that are based on matters outside the trial court record. Page v. Frank , 343 F.3d 901, 905–06 (7th Cir. 2003). If the trial court denies the postconviction motion, "the defendant may then appeal to the Court of Appeals of Wisconsin." Id. at 906. The subsequent appeal may encompass issues raised during trial as well as issues raised in the postconviction motion. Id. Defendants are "entitled to counsel while seeking relief through a postconviction motion ... or a direct appeal." Kyles , 2014 WI 38, ¶ 23, 354 Wis.2d 626, 847 N.W.2d 805. Appointed postconviction counsel must "confer with the defendant regarding the defendant's right to appeal, the potential merit or lack thereof in pursuing either a postconviction motion or appeal, and if applicable, the availability of the ‘no-merit option.’ " State ex rel. Ford v. Holm , 2004 WI App 22, ¶ 4, 269 Wis. 2d 810, 676 N.W.2d 500.

The "no-merit option" is available when "appointed counsel concludes that an appeal or motion for postconviction relief ‘would be frivolous and without any arguable merit.’ " Id. ¶ 5 (quoting Wis. Stat. § (Rule) 809.32(1)(a) ). It is constitutionally required. See Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Wisconsin's no-merit procedures are laid out in Wisconsin's Rule of Appellate Procedure 809.32. When appointed counsel determines that seeking postconviction relief would be meritless, the defendant has three options: have the appointed attorney file a no-merit report, close the case without an appeal, or withdraw so that the defendant may proceed without an attorney or with another attorney retained at the defendant's expense. Rule 809.32(1)(b). If the defendant chooses the no-merit report motion, appointed counsel must file a report that "identif[ies]...