Holmes v. Israel, 77-C-247.
| Decision Date | 19 July 1978 |
| Docket Number | No. 77-C-247.,77-C-247. |
| Citation | 453 F. Supp. 864 |
| Parties | Jerry Lee HOLMES, Petitioner, v. Thomas ISRAEL, Warden, Respondent. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Howard B. Eisenberg, State Public Defender, and Robert J. Paul, Deputy State Public Defender, Madison, Wis., for petitioner.
Bronson C. LaFollette, Atty. Gen., Wm. L. Gansner, Asst. Atty. Gen., Madison, Wis., for respondent.
DECISION AND ORDER
In this action the petitioner has filed with the court a request for issuance of a writ of habeas corpus. The petitioner presently is incarcerated in a state prison and is serving sentences for conviction on August 26, 1975, in the Circuit Court for Milwaukee County, State of Wisconsin, of armed robbery and attempted murder. Leave to proceed in forma pauperis was granted by the Court, and the respondent filed a return to the petition for issuance of the writ. Both parties have submitted briefs and the petitioner's brief has been supplemented by a submission from the office of the Wisconsin State Public Defender. This court's jurisdiction is founded upon 28 U.S.C. Sec. 2241.
Two grounds for issuance of the writ are asserted by the petitioner, which grounds are the same issues as were raised by the petitioner upon his direct appeal from the judgment of conviction and which were rejected on appeal. The first ground is that the trial court wrongfully admitted detailed testimony pertaining to the robbery conviction at the petitioner's trial for attempted murder. The second ground is that the sentencing judge took an impermissible factor into account in sentencing the petitioner. In opposition to the request for issuance of the writ, the respondent relies upon its brief on these issues to the state supreme court and the supreme court's opinion upholding the petitioner's conviction.
The petitioner presently is confined under a twenty-year sentence for conviction of armed robbery, imposed after the Circuit Court for Milwaukee County accepted a plea of guilty, and under a twenty-year sentence for conviction of attempted murder, imposed after a trial was held and a jury returned a verdict of guilty. The sentences were imposed to run consecutively. The charges of armed robbery and attempted murder were filed against the petitioner after he robbed a movie theatre at gunpoint and then fired a number of shots at pursuing police officers as he attempted to escape.
At trial, it was announced to the jury that the petitioner was to be tried for both armed robbery and attempted murder. However, before any witnesses were called or opening remarks made to the jury by the attorneys, the petitioner elected to plead guilty to the robbery charge while standing trial on the attempted murder charge. After ascertaining the factual basis of the petitioner's plea and then finding the petitioner guilty of armed robbery, the trial judge engaged in a discussion of how best to conduct the trial on the remaining charge so as not to prejudice either the prosecution or defense in light of the fact that the jury had already been informed that the petitioner was to be tried on both the armed robbery and attempted murder charges. From this discussion it was agreed by the judge and attorneys for both sides that the jury should not be informed of the guilty plea, that the jury should be instructed not to speculate as to the disposition of the charge of armed robbery, but that some reference to the facts of the armed robbery would have to be made to the jury so as to explain why the petitioner was fleeing from the police and why he had a motive to fire shots at them. In the course of the subsequent trial, detailed testimony by police officers about the facts of the armed robbery was admitted into evidence without a specific objection by counsel for the petitioner. Counsel for the petitioner did make a general objection to the admission of testimony concerning the armed robbery but was overruled. After the testimony was given by the witnesses, the defense counsel moved for a mistrial, which was not granted. A verdict of guilty was returned by the jury at the end of the trial. After first attempting unsuccessfully to obtain from the petitioner the identities and likely whereabouts of the petitioner's unapprehended accomplices in the armed robbery, the trial judge then imposed the twenty-year consecutive sentences upon the petitioner. Charging that the admission during the attempted murder trial of the detailed testimony concerning the armed robbery, to which the petitioner had pleaded guilty, was prejudicial error and that the sentencing judge had abused his discretion by punishing the petitioner for not revealing the identities of his accomplices in the robbery, the petitioner appealed to the state supreme court, which upheld both the convictions and the sentences. See Holmes v. State, 76 Wis.2d 259, 251 N.W.2d 56 (1976).
Before the Supreme Court of Wisconsin, the petitioner claimed that the trial judge and the attorneys for the prosecution and the defense had entered into a stipulation to exclude the testimony concerning the armed robbery, which was violated when the testimony was admitted. The supreme court found no evidence to support the assertion that such a stipulation had been made.
Next, the petitioner claimed that the armed robbery testimony was irrelevant, inadmissible, and prejudicial evidence of other crimes. However, the Wisconsin Supreme Court found the testimony to be relevant, admissible, and not prejudicial in that it was presented not for the purpose of showing to the jury that the petitioner possessed a bad character, but rather to show the motive — escape — for the attempted murder of the police as the petitioner was fleeing the armed robbery. A further claim was made by the petitioner that the armed robbery testimony was presented in such detail that he suffered undue prejudice in the eyes of the jury. Again refusing to find error, the Supreme Court of Wisconsin held that any objection to the extent of the detail of the armed robbery testimony had been waived by the failure of the petitioner's defense counsel to make a specific objection when that testimony was offered, and that, in any event, the extent of the detail was not so great that the trial court erred in allowing the detailed testimony.
Finally, with regard to the petitioner's claim that the sentences were improperly imposed, the Wisconsin Supreme Court concluded that the sentences imposed were within the allowable limits, that the sentencing judge had considered the proper factors in imposing the sentences, and that there was no abuse of discretion in the sentencing judge's consideration of the petitioner's noncooperation in refusing to identify his accomplices. Thus, the convictions and sentences were affirmed, and now the petitioner has presented the identical grounds of error to this court in this petition for a writ of habeas corpus. In essence, what the petitioner now argues is that his due process rights to a fair trial and sentencing were violated.
With regard to the petitioner's assertion that evidence of the armed robbery was improperly admitted at trial, this Court is initially faced with the question of whether or not an examination of the merits of the petitioner's assertion is barred by the state supreme court's finding that objection to the evidence was waived because the objection was not properly made before the trial judge. Although neither side in this case has discussed the point, this question of waiver would seem to be controlled by the recent case of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), in which the Supreme Court concluded that absent a showing of "cause and prejudice," a habeas corpus petitioner's failure to make a timely objection at trial could bar consideration of the petitioner's claim by the habeas corpus court. In Wainwright, although he had failed to object to the introduction at trial of pretrial statements he had made, the habeas corpus petitioner requested relief from a federal court by charging that the statements were made involuntarily. The federal district court ordered that a hearing be held on the voluntariness of the pretrial statements and the court of appeals affirmed. However, the Supreme Court reversed and ordered the habeas corpus petition dismissed for the reason that the state's procedural requirement that all objections be made at the time of trial and the petitioner's failure to comply with the requirement barred the federal court from issuing a writ of habeas corpus.
As was the case in Wainwright, the petitioner here...
To continue reading
Request your trial
-
Doyle v. Scutt
...State rules of sentencing ordinarily to do not raise constitutional issues which can be reached by habeas corpus review. Holmes v. Israel, 453 F.Supp. 864 (D.C.Wis.1978), aff'd, 618 F.2d 111 (1980). In considering a habeas corpus petition, a federal court will not set aside, on allegations ......
-
Gunsolus v. Gudmanson
...is within statutory limits unless the petitioner alleges an impropriety in the sentencing process itself. See Holmes v. Israel, 453 F.Supp. 864, 868-69 (E.D.Wis.1978), aff'd., 618 F.2d 111 (7th Cir.1980) (mem.). In this case Gunsolus has not argued that his sentence exceeded statutory limit......
-
Collins v. Israel, Civ. A. No. 81-C-159.
...Durso v. Pate, 426 F.2d 1083, 1088-1089 (7th Cir. 1970), cert. denied 400 U.S. 995, 91 S.Ct. 469, 27 L.Ed.2d 445; Holmes v. Israel, 453 F.Supp. 864, 868 (E.D.Wis.1978). In this case the evidence that the petitioner threatened to kill the victim was relevant and probative of intent. It no do......
- Atlas Chartering Services v. World Trade Group, 78 Civ. 2572 (LFM).