Parker v. Pollard, Case No. 11-C-9
| Decision Date | 16 March 2011 |
| Docket Number | Case No. 11-C-9 |
| Parties | LEONARD L. PARKER, Petitioner, v. WILLIAM POLLARD, Respondent. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Leonard Parker filed a petition pursuant to 28 U.S.C. § 2254, asserting that his state court conviction and sentence were imposed in violation of the Constitution. Petitioner was convicted in Milwaukee County Circuit Court of reckless homicide and armed robbery. He is currently incarcerated at Green Bay Correctional Institution.
I must give the case prompt initial consideration pursuant to Rule 4 of the Rules Governing § 2254 Cases, which reads:
If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified. Otherwise the judge shall order the respondent to file an answer.
Rule 4, Rules Governing § 2254 Cases. During my initial review of habeas petitions, I look to see whether the petitioner has set forth cognizable constitutional or federal law claims and exhausted available state remedies.
The petition asserts four claims, although they fall into two general categories. The first two claims, which were presented to and considered by the state courts, involve the trial court's refusal to suppress Petitioner's confession. The second two claims, which Petitioner raised in a postconviction motion, involve Petitioner's argument that black jurors were improperly excluded from the jury, in violation of Batson v. Kentucky, 476 U.S. 79, 86 (1986).
The Batson claims were rejected by the state courts pursuant to State v. Escalona-Naranjo, 185 Wis.2d 168, 181, 517 N.W.2d 157 (1994), which makes it clear that absent a showing of a "sufficient reason, " post-conviction proceedings under Wis. Stat. § 974.06 cannot be used to review issues which either were or could have been litigated on direct appeal, effectively precluding further state review. The state courts concluded that Petitioner should have raised his Batson issue during his direct appeal (and he should have objected before the jury was sworn, as well), and he provided no compelling reason to allow him to raise it in his § 974.06 proceedings. State v. Parker, 2010 WI App 71, 325 Wis.2d 402, 2010 WL 1658444. "Federal courts recognize Escalona-Naranjo's procedural bar as an independent and adequate state law ground to support dismissing claims." Greene v. Pollard, 677 F. Supp.2d 1073, 1092 (W.D. Wis. 2009). Because the state courts relied on an independent and adequate reason for rejecting these claims, federal relief under § 2254 is not available.
Petitioner's first claim asserts that the state courts erred in not considering the totality of the circumstances involved in Petitioner's interrogation. The court of appeals summarily rejected his challenge to the voluntariness of his confession:
Parker's argument relies on facts such as his own limited legal experience and intelligence, his youthful age of twenty, his likely lack of sleep, the length of the interrogation, and the manner of questioning. Without attempting to set forth thedetailed facts here, we are satisfied that the conditions of Parker's interrogation were less onerous than circumstances of other interrogations that have been held to produce voluntary statements.
State v. Parker, 2007 WI App 251, 2007 WL 3101989, *1 (Wis. Ct. App. 2007).
Petitioner alleges that this "one-size-fits-all" approach violates the Constitution because it fails to account for more nuanced circumstances that can result in coercion, such as Petitioner's mental health. This at least states a colorable claim upon which habeas relief could be granted, and as such I will direct the state to respond.
The second claim challenges the waiver of the right to counsel during the interrogation. The court of appeals rejected the claim on the grounds that the trial court conducted a hearing and found that Petitioner had not invoked his right to counsel. Petitioner's present argument seems to be that his mental state at the time would have precluded him from making a knowing waiver of the right to counsel. Although it is not clear if this was the argument presented to the state courts, I conclude that it should be addressed in the state's...
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