Ludwig v. Schaub

• Decision Date: 10 July 2014
• Docket Number: Case No. 12-C-0524
• Parties: DAWN M. LUDWIG, Petitioner, v. DEANNE SCHAUB, Warden Taycheedah Correctional Institution, Respondent,
• Court: U.S. District Court — Eastern District of Wisconsin

DAWN M. LUDWIG, Petitioner, v. DEANNE SCHAUB, Warden Taycheedah Correctional Institution, Respondent,

Case No. 12-C-0524

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

Dated: July 10, 2014

DECISION AND ORDER

On May 24, 2012, pro se petitioner, Dawn M. Ludwig, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Based on her no contest plea, the petitioner was convicted of two counts of homicide by reckless use of a vehicle, three counts of first-degree recklessly endangering safety and one count of operating a motor verhicle while intoxicated (third offense). The petitioner challenges her December 5, 2007, conviction on two grounds: 1) Wis. Stat. §940.09 is unconstitutional and 2) her trial counsel was ineffective for failing to advise her that a medical condition she had might constitute an affirmative defense to the homicide charges and for failing to conduct an accident reconstruction.¹ (Petition for a Writ of Habeas Corpus [Petition] at 7-8).

The court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 because the matter arises under federal statutes. Venue is proper under 28 U.S.C. § 1391. The case was assigned to this court based on the consent of the parties pursuant to 28 U.S.C. § 636(c) and General Local Rule 73 (E.D. Wis.).

United States District Court Judge Rudolph T. Randa conducted a preliminary examination of the petition in accordance with Rule 4 of the Rules Governing § 2254 Cases and ordered the respondent to "file an answer or other appropriate response to the petition within sixty (60) days of the date of this Order." (Decision and Order of August 7, 2012). The respondent filed an answer on February 6, 2013. The petition, which is fully briefed and ready for disposition, will be addressed herein. Also before the court are the petitioner's Motions to Schedule a Sentence Hearing Regarding the Court's Ruling in the case. (Docket ## 30, 31, 32, 34 and 36).

APPLICABLE LAW

The habeas corpus statute was amended by the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub.L. No. 104-132, 100 Stat. 1214 (1996) which provides in pertinent part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

This provision entitles federal courts, acting within their jurisdiction, to interpret the law independently, but requires them to refrain from "fine tuning" state court interpretations. Lindh v. Murphy, 96 F.3d 856, 870-877 (7th Cir. 1996), rev'd on other grounds, 521 U.S. 320 (1997). "Thus, although this court reviews the state court's legal conclusions and mixed questions of law and fact de novo, that review is 'tempered by AEDPA's deferential constraints.'" Hereford v. McCaughtry, 101 F. Supp. 2d 742, 746 (E.D. Wis. 2000) (quoting Sanchez v. Gilmore, 189 F.3d 619, 623 [7th Cir. 1999]).

A state court's decision is "contrary to . . . clearly established Federal law as established by the United States Supreme Court" if it is "substantially different from relevant [ Supreme Court] precedent." Washington v. Smith, 219 F.3d 620, 628 (7th Cir. 2000) (quoting Williams v. Taylor, 529 U.S. 362, 404-05 [2000]). The court of appeals for this circuit recognized the narrow application of the "contrary to" clause:

under the "contrary to" clause of § 2254(d)(1), [a court] could grant a writ of habeas corpus . . . where the state court applied a rule that contradicts the governing law as expounded in Supreme Court cases or where the state court confronts facts materially indistinguishable from a Supreme Court case and nevertheless arrives at a different result.

Washington, 219 F.3d at 628. The court went on to explain that the "unreasonable application of" clause was broader and "allows a federal habeas court to grant habeas relief whenever the state court 'unreasonably applie[d] [a clearly established] principle to the facts of the prisoner's case.'" Id. (quoting Williams, 529 U.S. at 413).

To be unreasonable, a state court ruling must be more than simply "erroneous" and perhaps more than "clearly erroneous." Hennon v. Cooper, 109 F.3d 330, 334 (7th Cir. 1997). Under the "unreasonableness" standard, a state court's decision will stand "ifit is one of several equally plausible outcomes." Hall v. Washington, 106 F.3d 742, 748-49 (7th Cir. 1997). In Morgan v. Krenke, the court explained:

Unreasonableness is judged by an objective standard, and under the "unreasonable application" clause, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable."

232 F.3d 562, 565-66 (7th Cir. 2000) (quoting Williams, 529 U.S. at 411). Therefore, before a court may issue a writ of habeas corpus, it must determine that the state court decision was both incorrect and unreasonable. Washington, 219 F.3d at 628.

RELEVANT FACTUAL BACKGROUND

The underlying crimes took place on U.S. Highway 41 in Wisconsin. The relevant facts were set forth by the Wisconsin Court of Appeals in its August 31, 2010, decision:

In the early morning hours of June 25, 2006, Ludwig's motor vehicle was traveling southbound in the northbound lane of United States Highway 41. Another motorist honked his horn at Ludwig in attempt to get her attention, but Ludwig continued driving the wrong way without deviating or changing direction. Minutes later, Ludwig collided head-on with a vehicle traveling northbound, killing the two occupants of that vehicle.

At the accident scene, sergeant Nathan Thompson noted that Ludwig's speech was "slurred" and "thick-tongued" and that she had difficulty controlling her fine motor skills. Ludwig told Officer Zachary Roush that she had consumed a few drinks before the accident. Officer Ryan Glime observed that Ludwig's eyes were red and her breath smelled of alcohol. A preliminary breath test indicated Ludwig has a .20% blood alcohol concentration.

(Answer to Petition for a Writ of Habeas Corpus [Answer], Exh. D at 2).

The petitioner pleaded no contest and was convicted of two counts of homicide by intoxicated use of a motor vehicle, three counts of first-degree reckless endangerment and one count of operating a motor vehicle while intoxicated, third offense. The petitionerfiled a post-conviction motion, asserting that her trial counsel was ineffective and that Wis. Stat. § 940.09 is unconstitutional. She also moved to withdraw her no contest plea, maintaining that it was not entered knowingly and voluntarily due to the ineffective assistance of her counsel. The trial court dismissed the petitioner's unconstitutionality claim and denied her ineffective assistance of counsel claim and her motion to withdraw her plea without a hearing. The petitioner appealed the judgment of conviction and the denial of her post-conviction motion.

The Wisconsin Court of Appeals affirmed the judgment and upheld the denial of the post-conviction motion, agreeing with the trial court that the motion failed to allege sufficient facts which, if true, would entitle the petitioner to relief. The petitioner filed a petition for review in the Wisconsin Supreme Court challenging the constitutionality of Wis. Stats. § 940.09. (Answer, Exh. E). The petitioner did not raise her ineffective assistance of counsel claim in her petition to the Wisconsin Supreme Court. Id. at 2-3. The petition was denied on January 11, 2011. (Answer, Exh. F).

The petitioner asserts the following grounds in her petition for a writ of habeas corpus: 1) Wis. Stat. § 940.09 is unconstitutional and 2) her trial counsel provided ineffective assistance because he failed to advise her that a medical condition she had might constitute an affirmative defense to the homicide charges and because he failed to conduct an accident reconstruction.

The petitioner argues that Wis. Stat. § 940.09(1)(a) is unconstitutional because it does not require a causal connection between the intoxicated condition of the operator and the death of another person. She also maintains that the affirmative defense provision of the statute violates her right to be presumed innocent and her FifthAmendment right against self-incrimination. Therefore, she argues that the affirmative defense does not cure the constitutional defect in the statute.

Section 940.09(1)(a) and (1c) of the Wisconsin Statutes states that any person who "[c]auses the death of another by the operation or handling of a vehicle while under the influence of an intoxicant" is guilty of a Class D felony. The statute "was designed to protect the public from a particular type of risk and harm, namely to hold accountable persons who become intoxicated, operate a motor vehicle and cause the death of another person." State v. Caibaiosai, 122 Wis.2d 587, 593, 363 N.W.2d 574 (1985). The statutory elements of the crime are: 1) the operation of a vehicle, 2) while under the influence of an intoxicant, and 3) which causes the death of another. Id. The statute, however, provides an affirmative defense if the defendant proves by a preponderance of the evidence that the death would have occurred even if the defendant had been exercising due care and had not been under the influence of an intoxicant. Wis. Stat. § 940.09(2)(a).

The court of appeals was not persuaded by the petitioner's arguments, explaining that the Wisconsin Supreme Court had considered these arguments and...