Greene v. Pollard

• Decision Date: 04 February 2010
• Docket Number: No. 08-cv-623-slc.,08-cv-623-slc.
• Citation: 677 F. Supp.2d 1073
• Parties: Jeremy T. GREENE, Petitioner, v. William POLLARD, Warden, Green Bay Correctional Institution, Respondent.
• Court: U.S. District Court — Western District of Wisconsin

677 F.Supp.2d 1073

Jeremy T. GREENE, Petitioner, v. William POLLARD, Warden, Green Bay Correctional Institution, Respondent.

No. 08-cv-623-slc.

United States District Court, W.D. Wisconsin.

December 30, 2009.

Order Denying Reconsideration February 4, 2010.

Jeremy T. Greene, Green Bay, WI, pro se.

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

OPINION AND ORDER

BARBARA B. CRABB, District Judge.

Petitioner Jeremy T. Greene was convicted of first degree murder and other crimes in state court in 2002. Since then, he has challenged his conviction by appealing it to the state court of appeals, petitioning for review by the state supreme court, pursuing a post conviction motion under Wis. Stat. § 974.06, taking an unsuccessful appeal of the denial of the § 974.06 motion, petitioning again for review by the state supreme court, pursuing an unsuccessful petition for a writ of habeas corpus in the state appellate court, appealing the denial of that petition, filing a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in this court and filing objections to the United States Magistrate Judge's recommended denial of his petition.

In the petition he filed in this court, petitioner contends that his conviction is invalid for ten reasons:

(1) a Batson violation occurred during jury selection;

(2) the trial court failed to strike a biased juror;

(3) the jury pool was unrepresentative;

(4) the prosecutor made improper comments during closing arguments about petitioner's right to remain silent;

(5) the trial court erred in denying petitioner's severance request;

(6) petitioner and his co-defendant had antagonistic defenses;

(7) petitioner's trial counsel was ineffective in failing to object properly to the trial errors (8) trial counsel was ineffective in failing to provide a valid theory in support of petitioner's request for a lesser included offense instruction;

(9) appellate counsel was ineffective in failing to bring a post conviction motion challenging the effectiveness of trial counsel and in failing to raise issues (1), (2), (3), (4), (5), (6) and (7); and

(10) the trial court erred in denying petitioner's request for lesser included offense instructions.

I agree with the magistrate judge's conclusion that this court cannot grant relief to petitioner because, as to most of his challenges, he failed to preserve his right to raise them in federal court and, as to those he did preserve, the state courts resolved them properly, applying clearly established federal law and making no unreasonable determinations of fact.

BACKGROUND

In 2001, petitioner and three accomplices were charged in the Circuit Court for Dane County with first degree intentional homicide, armed robbery and armed burglary in the stabbing death of Kyle Hachmeister in the bedroom of his home. Two of the defendants, Corey Ellis and Lindsey Kopp, entered pleas to lesser charges in exchange for their testimony against petitioner and Genevieve Pauser, who were tried together after the trial court denied petitioner's motion for severance. Both defendants presented evidence that they had not been at the scene of the crime.

With respect to Pauser, the state put in evidence showing that she had ridden to Hachmeister's house but had remained in the car while the attempted robbery and murder were carried out. The trial court instructed the jury that it could find Pauser guilty of the lesser included offense of felony murder, but it found her guilty of the greater offense of intentional homicide. As to petitioner, the state introduced evidence that he had been in Hachmeister's bedroom and had stabbed him to death. Petitioner's counsel argued for instructions on the lesser included offenses of reckless homicide and felony murder, asserting that the reckless homicide instruction would be proper because the jury could find that he had stabbed Hachmeister but that he had lacked the intent to kill him. The trial court denied the request for a lesser included offense instruction of reckless homicide, saying that the nature and extent of the stab wounds showed that "whoever did it acted with an intent to kill or with the state of mind that their conduct was practically certain to cause death." Trial transcript, State v. Greene, Jan. 13, 2002, at 20. The court added that, "if there is a reasonable ground to acquit Mr. Greene of first-degree intentional homicide, it lies in the alibi, not the absence of intent.... I think in Mr. Greene's case it's an all or nothing proposition." Id.

Petitioner's counsel did not support his request for an instruction on felony murder with any argument. The court denied the request without any explanation, but it seems clear from the transcript that the court was relying on its belief that the jury's verdict would be an all or nothing proposition: either the jury believed the alibi or it would have to find that defendant had gone into Hachmeister's house and had done the stabbing. In other words, the evidence did not support a finding that petitioner was present at the house but did not take any part in the murder. The jury found petitioner guilty of first degree intentional homicide and the court imposed the mandatory life sentence.

OPINION

In a thorough and persuasive 27-page report, the magistrate judge explained why petitioner's failure to present all of his claims properly in state court barred this court from hearing eight of petitioner's ten claims of constitutional error in his state court proceedings, as well as most of the two remaining claims, and why petitioner was not entitled to federal habeas relief on the two other claims. Petitioner submitted 136 pages of objections to the magistrate judge's report, but failed to show any error in the magistrate judge's evaluation of petitioner's claims. Petitioner's "objections" include a 20-page statement of facts, long discussions of holdings in cases he thinks are pertinent, legal arguments derived from the case holdings, complaints about his difficulties in litigating his claims as a prisoner and many actual objections to errors he identified in the magistrate judge's report.

After reading the entire document, I am not persuaded that the magistrate judge made any errors of any significance, but one allegation bears mentioning. On pages 49-53 of the objections, dkt. #33, petitioner takes issue with the magistrate judge's reference on page 12 of his report and recommendation, dkt. # 27, to a "response" filed by respondent. Petitioner reads the term "response" to refer to a response to his brief in support of his petition and points out, correctly, that no such response was ever filed. The "response" to which the magistrate judge referred is clearly the answer that respondent filed to the petition. Dkt. # 12.

Petitioner argues that respondent's failure to file a response to petitioner's "brief-in-chief" demonstrated his abandonment of all of his defenses to the § 2254 petition. This is an unfounded conclusion. Not only does the docket sheet not show any "brief-in-chief" from petitioner, it shows no court order directing respondent to file a brief. Petitioner is right when he says that the court should treat all litigants in the same way and not excuse the state from its legal obligations, but he has failed to show that respondent has been exempted from any obligation that would apply to any other litigant. Respondent filed an answer to the petition; in the absence of any order requiring him to do more, he cannot be held to have abandoned his opposition to the petition. I turn then to petitioner's objections to the magistrate judge's conclusion that he failed to preserve his federal claims for review in federal court.

It is well established that a prisoner seeking a writ of habeas corpus must exhaust his state remedies before seeking federal relief. Moleterno v. Nelson, 114 F.3d 629, 633 (7th Cir.1997) (citing cases). Claims are exhausted when they have been presented to the highest state court for a ruling on the merits of the claims or when state remedies no longer remain available to the petitioner. Engle v. Isaac, 456 U.S. 107, 125 n. 28, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); 28 U.S.C. § 2254(c). When a petitioner raises claims that have not been exhausted in state court and state remedies remain available, the federal court must dismiss the petition without prejudice to allow the petitioner to return to state court. Rhines v. Weber, 544 U.S. 269, 274, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005); Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).

However, when the petitioner has already pursued his state court remedies but failed to properly present his claims to the state courts along the way, "it is not the exhaustion doctrine that stands in the path to habeas relief ... but rather the separate but related doctrine of procedural default." Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir.2004). Under the procedural default doctrine, a federal court cannot reach the merits of a habeas claim in two instances: if the petitioner either failed to present his claim to the state courts and it is clear that those courts would now hold the claim procedurally barred or if he presented his claim to the state courts but the state court dismissed the claim on a state procedural ground that was both independent of the federal question and adequate to support the judgment. Perruquet, 390 F.3d at 514; Moore v. Bryant, 295 F.3d 771, 774 (7th Cir.2002); Chambers v. McCaughtry, 264 F.3d 732, 737-38 (7th Cir.2001). When a petitioner has procedurally defaulted his claims, the federal court must deny his petition with prejudice without reviewing the merits of the claim.

Although Wisconsin has a generous and extensive system for attacking convictions, it imposes relatively strict requirements on those who use the system. The most basic of these is the rule that the petitioner must present his claims to the state courts fully,...