Toliver v. McCaughtry

• Decision Date: 18 December 1995
• Docket Number: No. 95-C-1105.,95-C-1105.
• Citation: 910 F. Supp. 1366
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: Oliver R. TOLIVER, Petitioner, v. Gary R. McCAUGHTRY, Respondent.

910 F. Supp. 1366

Oliver R. TOLIVER, Petitioner, v. Gary R. McCAUGHTRY, Respondent.

No. 95-C-1105.

United States District Court, E.D. Wisconsin.

December 18, 1995.

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Oliver R. Toliver, Waupun, WI, pro se.

Sally L. Wellman, Assistant Attorney General, Madison, WI, for Respondent.

MEMORANDUM AND ORDER

WARREN, District Judge.

Before the Court is Oliver Toliver's pro se Petition to Proceed In Forma Pauperis and Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in the above-captioned matter. Toliver is currently serving a life sentence in the Waupun Correctional Institution in Waupun, Wisconsin for first-degree intentional homicide, party to a crime in violation of Wis.Stat. §§ 940.01(1) and 939.05. For the following reasons, Toliver's Petitions are DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND

In an action brought under 28 U.S.C. § 2254, the factual determinations of the state trial and appellate court are "presumed to be correct." 28 U.S.C. § 2254(d) (providing that "a determination after a hearing on the merits of a factual issue ... evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct"); Lewis v. Huch, 964 F.2d 670, 671 (7th Cir.1992). Accordingly, this Court adopts the Wisconsin Court of Appeals' statement of facts. See State of Wisconsin v. Toliver, 186 Wis.2d 576, 522 N.W.2d 36, 1994 WL 313280 (Ct.App. July 5, 1994) (per curiam).

Oliver Toliver was convicted by a jury in Milwaukee County Circuit Court of first-degree intentional homicide, party to a crime, contrary to Wis.Stat. §§ 940.01(1) and 939.05 and was sentenced to life imprisonment with parole eligibility on June 27, 2045. In an unpublished opinion, the appellate court summarized the facts underlying his conviction as follows:

On May 12, 1991, Toliver and his brother Stephen, learned that Stephen's girlfriend's son, Commosie Thompson, was missing $1,800 dollars. Thompson suspected that Tina Rodgers, a young woman who lived in the attic of the house, took the money. The jury heard two opposing versions of the murder. Thompson testified that when Stephen and Toliver brought Rodgers back to the house, Stephen questioned her about the missing money, threw his gun on the couch and told Thompson to kill whomever he thought took the money. Thompson further testified that Toliver walked up to Rodgers and shot her in the forehead and again in the temple. Thompson's mother Joetta Foster, and his two friends, Darian Robinson and Cory Henry, corroborated Thompson's testimony.

Toliver denied participating in the murder. He testified that after Rodgers arrived, he left the house, visited friends and relatives, and went out to dinner. After returning to the house, he left to feed his dog. At approximately 9:30 p.m., he returned to the house with Stephen. After watching a movie, he fell asleep until 12 a.m., when Stephen woke him to help move Rodgers' body. They loaded the quilt-covered body into Stephen's car and left it in bushes near the embankment of the Lincoln Creek Parkway.

On May 15, a body identified as Rodgers was discovered wrapped in a quilt near bushes along the Lincoln Creek Parkway. Dr. John Teggatz of the Milwaukee County Medical Examiner's office testified that death was due to bullet wounds to the brain.

Id. 1994 WL 313280, at *1.

Not believing that Toliver had any basis for appeal, his defense counsel filed a "no merit" report under Wis.Stats. § 809.32, and Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Toliver filed a response to the "no merit" report. The no merit report discussed two potential issues: whether the trial court committed prejudicial error by (1) finding that Toliver's statements to authorities were voluntary and (2) admitting into evidence a photograph of the murder victim. In addition to the two issues raised by the no merit report, Toliver's response claimed (1) he received ineffective assistance of counsel; (2) the trial court demonstrated bias in questioning witnesses; (3) the trial judge erroneously refused to disqualify himself; and (4) the prosecutor failed to disclose crucial evidence. In affirming his conviction, the appellate court found that none of these six issues had arguable merit. Toliver, 1994 WL 313280, at *1. On September 20, 1994, the Wisconsin Supreme Court denied review. State v. Toliver, ___ Wis.2d ___, 525 N.W.2d 733 (1994).

On October 30, 1995, Toliver filed the instant petition on the following grounds:

(1) the trial judge abused his discretion in questioning defendant and soliciting questions from jurors after every witness testified (Petition, A, ground one, pg. 5);

(2) the trial judge abused his discretion when he failed to disqualify himself (Petition, B, ground two, pg. 5);

(3) the prosecutor failed to disclose crucial evidence favorable to the defendant relating to the defendant's allegation that he was interrogated after he demanded counsel and a statement made by the defendant was used against him (Petition, C, ground three, pg. 6);

(4) the trial court erred in allowing an alleged statement made by the defendant to investigating officers to go before the jury when the statement was obtained as the result of "psychological" "police coercion" and a "long detention" (Petition, F, G, & H, pgs. 7 & 8);

(5) the trial court committed prejudicial error by allowing the jury to view a nude photograph of the murder victim (Petition, D, ground four, pg. 6); and

(6) ineffective assistance of counsel by both trial and appellate counsel (Petition, E & I, pgs. 7 & 8).

II. LEGAL STANDARD

The federal in forma pauperis statute, 28 U.S.C. § 1915, is designed to insure that indigent litigants have meaningful access to the federal courts. Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989). As a result, it allows an indigent party to commence an action in federal court, without costs and fees, upon submission of an affidavit asserting an inability "to pay such costs or give security therefor" and stating "the nature of the action, defense or appeal and the affiant's belief that he is entitled to redress." 28 U.S.C. § 1915(a).

Recognizing that some nonpaying litigants may attempt to abuse this privilege, however, Congress also authorized the courts to dismiss such a case "if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious." 28 U.S.C. § 1915(d). An action is considered frivolous if there is no arguable basis for relief either in law or fact, Denton v. Hernandez, 504 U.S. 25, 31, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992); Neitzke, 490 U.S. at 325, 109 S.Ct. at 1831, and, as long as the suit is not frivolous or malicious, a district court should grant the petitioner's request. Free v. United States, 879 F.2d 1535, 1536 (7th Cir.1989). In making such determinations, the Court is obliged to give the petitioner's pro se allegations a liberal construction. Hughes v. Rowe, 449 U.S. 5, 9-10, 101 S.Ct. 173, 175-76, 66 L.Ed.2d 163 (1980) (per curiam).

Habeas relief is an exceptional remedy which, while designed as a "bulwark against convictions that violate fundamental fairness," entails significant costs. Engle v. Isaac, 456 U.S. 107, 126, 102 S.Ct. 1558, 1571, 71 L.Ed.2d 783 (1982). The most important of these costs is the uncertainty of criminal convictions. Coleman v. Thompson, 501 U.S. 722, 748, 111 S.Ct. 2546, 2563, 115 L.Ed.2d 640 (1991). As noted by the Supreme Court, "both the individual defendant and society have an interest in insuring that there will at some point be the certainty that comes with an end to litigation and that attention will ultimately be focused not on whether the conviction was free from error but rather on whether the prisoner can be restored to a useful place in the community." Engle, 456 U.S. at 127, 102 S.Ct. at 1571.

Given the importance of finality, a habeas petition, which may be brought years after conviction, does not serve as a substitute for a direct appeal. Belford v. United States, 975 F.2d 310, 313 (7th Cir.1992); Bontkowski v. United States, 850 F.2d 306, 312 (7th Cir.1988). As a result, when possible, all issues raised in a habeas petition must first be raised on direct appeal. Theodorou v. United States, 887 F.2d 1336, 1339 (7th Cir.1989); Williams v. United States, 805 F.2d 1301, 1304 (7th Cir.1986), cert. denied, 481 U.S. 1039, 107 S.Ct. 1978, 95 L.Ed.2d 818 (1987).

When a party fails to properly raise a constitutional objection on direct appeal, he or she may not proceed in a federal habeas petition unless showing both (1) good cause for failing to pursue the neglected issue on direct appeal, and (2) actual prejudice stemming from a constitutional violation. Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977); Williams, 805 F.2d at 1306-07. A party is barred, without regard to "cause and prejudice," from raising non-constitutional challenges in habeas proceedings that could have been raised on direct appeal. Bontkowski, 850 F.2d at 313. The "cause and prejudice" test applies both to procedural defaults committed at trial and those made on appeal. Murray v. Carrier, 477 U.S. 478, 491, 106 S.Ct. 2639, 2647, 91 L.Ed.2d 397 (1986).

"Good cause" exists when some factor external to the defense impedes a defendant's ability to comply with a procedural rule. Id. at 488, 106 S.Ct. at 2645. Ineffective assistance of counsel in violation of the Sixth Amendment may constitute "cause" under Wainwright for a procedural default. Id. When assessing whether a party has established cause, the Court may only examine that party's proffered reasons for not raising timely objections and not speculate about other possible explanations. Williams, 805 F.2d at 1309; Qualls v. United States, 774 F.2d 850, 851 (7th Cir.1985). To prove "prejudice" under Wainwright, a party must show "not merely that the errors...