Grady v. Cooper, Case No. 18-cv-1453-pp

• Court: United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
• Writing for the Court: PAMELA PEPPER, Chief United States District Judge
• Citation: 511 F.Supp.3d 918
• Parties: Howard GRADY, Petitioner, v. Sarah COOPER, Respondent.
• Docket Number: Case No. 18-cv-1453-pp
• Decision Date: 06 January 2021

511 F.Supp.3d 918

Howard GRADY, Petitioner,
v.
Sarah COOPER,¹ Respondent.

Case No. 18-cv-1453-pp

United States District Court, E.D. Wisconsin.

Signed January 6, 2021

511 F.Supp.3d 921

Howard Grady, Oshkosh, WI, pro se.

John A. Blimling, Wisconsin Department of Justice Office of the Attorney General, Madison, WI, for Respondent.

ORDER GRANTING RESPONDENT'S MOTION TO DISMISS (DKT. NO. 16), DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY AND DISMISSING CASE

PAMELA PEPPER, Chief United States District Judge

511 F.Supp.3d 922

On September 17, 2018, the petitioner, an inmate at Oshkosh Correctional Institution who is representing himself, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254, challenging his July 16, 2015 conviction in Milwaukee County Circuit Court for aggravated battery. Dkt. No. 1 at 8-9; State v. Grady, Milwaukee County Case No. 14CF003988 (available at https://wcca.wicourts.gov). On September 25, 2019, the court screened the petition, allowed the petitioner to proceed on both of his claims, and ordered the respondent to answer or otherwise respond. Dkt. No. 13. About six weeks later, the respondent filed a motion to dismiss the petition along with a brief in support of the motion. Dkt. Nos. 16, 17. The petitioner has filed his opposition brief. Dkt. No. 18. Because the petitioner procedurally defaulted his claims, the court will dismiss the petition and the case.

I. Background

A. Underlying State Case

On May 15, 2014, the Ozaukee County District Attorney's Office charged the petitioner with burglary. State v. Grady, Case No. 14CF000125 (Ozaukee County Circuit Court) (available at https://wcca.wicourts.gov). The petitioner pled no contest. Id. On July 29, 2014, the court sentenced the petitioner to three years of probation and withheld a term of incarceration. Id.

About a month later, the Milwaukee County District Attorney's Office charged the petitioner with one count of aggravated battery under Wis. Stat. § 940.19(6) and one count of substantial battery with intent to cause bodily harm under Wis. Stat. § 940.19(2). State v. Grady, Case No. 14CF003988 (Milwaukee County Circuit Court) (available at https://wcca.wicourts.gov). In Wisconsin, substantial battery is a lesser included offense of aggravated battery. See, e.g., State v. Jackson, 372 Wis. 2d 458 n.6, 2016 WL 6106373 (Wis. Ct. App. 2016). The state brought both charges as domestic abuse offenses with the use of a dangerous weapon. Dkt. No. 1-1 at 1. The criminal complaint alleged that the petitioner "hit his live-in girlfriend repeatedly with a hammer to the head after she refused to give him money to buy drugs." Id. As a result of the Milwaukee charges, the Ozaukee County Circuit Court issued a revocation order and warrant on November 12, 2014. State v. Grady, Case No. 14CF000125 (Ozaukee County Circuit Court) (available at https://wcca.wicourts.gov). The court adjourned the petitioner's revocation hearing until his Milwaukee County case concluded. Id.

In April of 2015, a Milwaukee jury found the petitioner guilty on both battery counts. State v. Grady, Case No. 14CF003988 (Milwaukee County Circuit Court) (available at https://wcca.wicourts.gov). In May, the Ozaukee County Circuit Court revoked the petitioner's probation and sentenced him to seven years and six months of initial confinement followed by five years of extended supervision on the burglary charge. State v. Grady, Case No. 14CF000125 (Ozaukee County Circuit Court) (available eat https://wcca.wicourts.gov). The petitioner has a pending habeas

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case before this court challenging the Ozaukee County revocation proceedings. Grady v. Smith, Case No. 18-cv-615 (E.D. Wis.).²

On July 10, 2015, the petitioner returned to Milwaukee County Circuit Court for sentencing on his battery convictions. State v. Grady, Case No. 14CF003988 (Milwaukee County Circuit Court) (available at https://wcca.wicourts.gov). The Wisconsin Statutes provide that "[u]pon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both." Wis. Stat. 939.66. Wis. Stat. § 939.66(2m) clarifies that "[a]n included crime may be ... [a] crime which is a less serious or equally serious type of battery than the one charged." Before the sentencing hearing began, the state moved to dismiss the substantial battery conviction because of concerns related to Wis. Stat. § 939.66(2m). Dkt. No. 1-1 at 1. The circuit judge dismissed Count Two (the substantial battery count) and sentenced the petitioner to twelve years of initial confinement and three years of extended supervision on Count One (the aggravated battery count), to be served consecutively to any other sentence. State v. Grady, Case No. 14CF003988 (Milwaukee County Circuit Court) (available at https://wcca.wicourts.gov). The instant federal habeas petition challenges the judgment from the petitioner's Milwaukee County case.

B. State postconviction proceedings

1. Postconviction motion in Milwaukee County Circuit Court

On October 14, 2016, the petitioner filed a postconviction motion in Milwaukee County Circuit Court seeking a new trial, or alternatively, a sentence modification. Dkt. No. 1-1 at 1. The petitioner argued that the trial court failed to adequately instruct the jury on lesser included offenses, and that this failure resulted in verdicts that violated Wis. Stat. § 939.66(2m). Id. at 2. The Milwaukee County Circuit Court explained the petitioner's argument as follows:

The [petitioner] maintains that it is unknown whether the jury thought he was more guilty on count one or on count two, and that it is plain error which entitles him to a new trial because the jury was instructed to answer both verdicts. He does not cite any legal support for this proposition; he merely argues that this particular scenario is distinguished from the situation found in State v. Hughes , 248 Wis. 2d 133 [635 N.W.2d 661] (Ct. App. 2001), which is relied on by the State.

Id. The court then recounted the facts and holding in Hughes:

In State v. Hughes , ... the jury was instructed only to find the defendant guilty of possession with intent to deliver if the State met its burden, and if it didn't, it should consider the mere possession charge; but it was not to find the defendant guilty of more than one of the two offenses. The jury found the defendant guilty of both offenses. The defendant argued that the verdict was ambiguous and sought a new trial. The Court of Appeals held that the second guilty verdict was "mere surplusage and is precisely the type of harmless error that Wis. Stats. Rule 805.18(2) commands shall not be the basis for a reversal." Hughes , 248 Wis. 2d at 141 [635 N.W.2d 661]. The court found that the verdicts

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were not ambiguous because the jury clearly found that the State proved beyond a reasonable doubt that the defendant not only possessed the cocaine but possessed it with intent to deliver it. It therefore concluded that the defendant was not deprived of any substantial rights.

Id. at 2-3. The court rejected the petitioner's attempts to distinguish Hughes, finding that "[t]he jury's verdict on count one unequivocally reflect[ed] that it found the State had proved its case against the defendant beyond a reasonable doubt as to the greater offense." Id. at 3. The court concluded that "[w]hether or not the jury was told it should only reach a verdict on count two if it found the State did not meet its burden on count one is irrelevant to proof of the elements on count one." Id. The court dismissed the lesser included offense.

The petitioner also asked the circuit court for a new trial because he argued that the trial court failed to properly make a record of a note sent from the jury during deliberations. Id. The court found it "undisputed that the jury sent out a note and that the note was not retained" and then recounted the relevant portion of the petitioner's sentencing hearing:

THE COURT: ... The other outstanding issue that the State reminded the Court of was that we did have a question that I don't believe I put on the record. I shouldn't say a question. It was a note the jury sent. I am usually good about putting those on the record and usually we keep a copy of them. For whatever reason, I believe this jury disposed of it because it didn't come back with the file and the binder, and I did not unfortunately make a record of it. I remember what it was. I understand the State wrote it down. And this came during deliberations. What was the question?

[THE STATE:] That's right Judge. I wrote it down because it was unusual and at the time pretty worrisome to the State. I believe the exact quote from the jury's question was ‘proof of burden explanation’ question mark.

THE COURT: That seems to be correct to me. I remember it having to do with the burden of proof. I remember it being kind of an oddly-worded question. Does that sound accurate to you, Mr. Mathers?

[DEFENSE:] Yes.

THE COURT: All right. So I will make the record that that's what the jury asked. Then I recall just directing them to the jury instructions. I did not give them any other

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