Gunsolus v. Gudmanson

• Decision Date: 16 November 1989
• Docket Number: No. 89-C-447.,89-C-447.
• Citation: 724 F. Supp. 624
• Parties: James C. GUNSOLUS, Petitioner, v. Donald GUDMANSON, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

724 F. Supp. 624

James C. GUNSOLUS, Petitioner, v. Donald GUDMANSON, Respondent.

No. 89-C-447.

United States District Court, E.D. Wisconsin.

November 16, 1989.

James C. Gunsolus, pro se.

William Ganser, Asst. Atty. Gen., Madison, Wis., for respondent.

OPINION AND ORDER

CURRAN, District Judge.

James C. Gunsolus, the petitioner in the above-captioned action, is a prisoner in state custody who is seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After a February 10, 1988, bench trial in the Milwaukee County (Wisconsin) Circuit Court, Gunsolus was convicted of one count of endangering safety by conduct regardless of life in violation of section 941.30 of the 1983 version of the Wisconsin Statutes.¹ He is currently serving a sentence of imprisonment at the Oshkosh Correctional Institution where he is in the custody of respondent Donald Gudmanson.² This court, which is located in the district where Gunsolus was convicted, is empowered to consider the petition under 28 U.S.C. § 2241(d).

I. PRIOR PROCEEDINGS

The respondent has submitted the following rendition of the state proceedings in this case. This account is supported by documents in the record and has not been controverted by the petitioner. The respondent relates that:

In December of 1984 Gunsolus was charged with attempted murder and armed/masked robbery after the holdup of a grocery store in West Allis, Wisconsin. As a result of plea negotiations, Gunsolus entered guilty pleas to a reduced charge of endangering safety by conduct regardless of life, sec. 941.30, Wis.Stats. (1983), and to the original charge of armed/masked robbery, secs. 943.32(1)(b) and (2), and 946.62 Wis.Stats. (1983). On April 25, 1985, Gunsolus was sentenced to a twelve-year prison term on the armed/masked robbery count and a consecutive five-year prison term for the endangering safety count. Gunsolus then sought to withdraw his guilty plea to the endangering safety charge; he did not challenge the armed/masked robbery conviction. The trial court denied his withdrawal motion, but in March of 1986 the Wisconsin Court of Appeals reversed the trial court's order. After remand to the trial court, Gunsolus withdrew his guilty plea to endangering safety. The original charge of attempted murder was reinstated. After a bench trial on February 10, 1988, the trial court found Gunsolus guilty of the lesser offense of endangering safety. On March 24, 1988, Gunsolus received a five-year sentence to be served concurrently with the previously-imposed twelve-year sentence for armed/masked robbery. Thus, after withdrawing his guilty plea to the endangering safety charge, Gunsolus went to trial and was found guilty of the same offense. Because the five-year sentence he then received was made concurrent with, rather than consecutive to, the armed/masked robbery sentence, Gunsolus succeeded in reducing his overall sentence from seventeen to twelve years.

At his sentencing on the endangering safety count on March 24, 1988, the trial court denied Gunsolus's pro se motions to (1) modify the earlier twelve-year armed robbery sentence on the basis of alleged new factors brought out at the endangering safety trial, and (2) delete from the armed/masked robbery judgment of conviction any reference to "masked."

On his subsequent appeal to the Wisconsin Court of Appeals, Gunsolus sought review of both his endangering safety conviction and the trial court's order denying his pro se motions to modify his armed/masked sentence and judgment of conviction. Gunsolus raised three claims on that appeal: (1) that the evidence at the bench trial had failed to prove all the elements of endangering safety; (2) that he should have been resentenced on the armed/masked robbery conviction because his bench trial had revealed certain mitigating factors that warranted a reduction in the twelve-year sentence; and (3) that the reference to "masked" in the armed/masked robbery judgment of conviction should be deleted.

The Wisconsin Court of Appeals affirmed the endangering safety conviction and the trial court's denial of Gunsolus's motions to modify his armed/masked robbery sentence and judgment of conviction. Gunsolus's sic petitioned for review by the Wisconsin Supreme Court. The petition was denied.

Gunsolus then petitioned this court for federal habeas corpus relief. He raised two claims: (1) that the evidence at his bench trial was insufficient to support his endangering safety conviction, in violation of his fifth and fourteenth amendment rights to due process of law; and (2) that the state trial court's refusal to reduce his twelve-year sentence for armed/masked robbery was an abuse of discretion that also violated his due process rights.³

Brief in Opposition to Petition for Writ of Habeas Corpus at 1-4 (citations omitted).

II. COLLATERAL REVIEW

A. Sufficiency of Evidence

The first issue before this court on collateral review is whether Gunsolus is in custody in violation of his right to a fundamentally fair trial as guaranteed by the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution. Gunsolus contends that his trial was fundamentally unfair because the evidence received was insufficient to convict him of endangering safety by conduct regardless of life.

When assessing the sufficiency of the evidence supporting a state conviction on habeas review, the district court must decide whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Garlington v. O'Leary, 879 F.2d 277, 285 (7th Cir.1989). Circumstantial as well as direct evidence must be considered as well as all the reasonable inferences that can be drawn from the evidence in the government's favor. See United States v. DeSoto, 885 F.2d 354, 364 (7th Cir.1989).

In making this determination from the record,⁴ federal courts must accord a presumption of correctness to state court findings of basic, primary or historical facts and to subsidiary facts underlying ultimate conclusions, provided that the conditions of 28 U.S.C. § 2254(d)⁵ are met. See Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 770-71, 66 L.Ed.2d 722 (1981); Townsend v. Sain, 372 U.S. 293, 309 n. 6, 83 S.Ct. 745, 755 n. 6, 9 L.Ed.2d 770 (1963); United States ex rel. Savory v. Lane, 832 F.2d 1011, 1019 (7th Cir.1987). This rule applies equally to findings of trial courts and appellate courts. See Sumner, 449 U.S. at 545-47, 101 S.Ct. at 768-69. It applies as well to inferences that can be deduced from the facts. See Marshall v. Lonberger, 459 U.S. 422, 435, 103 S.Ct. 843, 851, 74 L.Ed.2d 646 (1983). However, the legal conclusions drawn by state courts from the historical facts on the federal constitutional questions raised are subject to independent review. See Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1714-15, 64 L.Ed.2d 333 (1980). In the same fashion, mixed questions of law and fact are subject to independent federal review. See United States ex rel. Savory, 832 F.2d at 1018; Nash v. Israel, 707 F.2d 298, 301 (7th Cir.1983). Where a question is mixed, the federal court may give a different weight to the facts as found by the state court and may reach a different conclusion in light of the legal standard.

On collateral review by a federal court the legal standard which is applied must be derived from federal constitutional law. See Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969). And federal habeas review can address only violations of the Constitution, laws or treaties of the United States. See Shillcutt v. Gagnon, 827 F.2d 1155, 1158 (7th Cir.1987). The sufficiency of the evidence is normally a matter of state law and procedure and does not involve federal constitutional issues. There is a Fourteenth Amendment violation only when the conviction is so totally devoid of evidentiary support as to raise a due process issue. See Elswick v. Holland, 623 F.Supp. 498, 501 (S.D.W.Va.1985), appeal dismissed, 782 F.2d 1034 (4th Cir.1986) (mem.).

In this case, in order to convict Gunsolus of endangering safety by conduct regardless of life, the state was required to prove three essential elements beyond a reasonable doubt:

1. that the defendant's conduct actually endangered the safety of another person;

2. that the defendant's conduct was imminently dangerous to another person; and

3. that the defendant's conduct evinced a depraved mind, regardless of human life.

See Balistreri v. State, 83 Wis.2d 440, 454, 265 N.W.2d 290, 296-98 (1978).

Gunsolus concedes that, after robbing a West Allis grocery store, he pointed his loaded revolver at store employee Richard Stoddard and squeezed the trigger. However, the petitioner argues that the state did not prove that he evinced a depraved mind.⁶

At trial Gunsolus testified in his own behalf and stated that, when he purchased the gun two days before the robbery, he believed that it was inoperative. A friend who was present at the time of the purchase and a woman with whom Gunsolus shared a residence corroborated this statement. See Trial Transcript at 80-98. Nevertheless, at the conclusion of Gunsolus' bench trial, the state court judge found that Gunsolus had acted with the requisite intent. He reasoned that:

First of all, in order to make a finding beyond a reasonable doubt in that regard, we have to find the defendant's conduct was imminently dangerous to another, and certainly the clicking of a gun that's capable, by the experts — and the court considers the testimony of the experts — of being fired, is conduct which is imminently dangerous to another, and second, that the conduct was of such a character that it — I don't use the old — the phrase as the — set forth in the statute, a depraved mind, because — but I do find here that the

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