Walker v. Pollard

• Decision Date: 04 September 2019
• Docket Number: Case No. 18-C-0147
• Parties: MONTGOMERY WALKER, Petitioner, v. WILLIAM POLLARD, Warden, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

MONTGOMERY WALKER, Petitioner, v. WILLIAM POLLARD, Warden, Respondent.

Case No. 18-C-0147

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

September 4, 2019

DECISION AND ORDER

Before me now are two matters: the merits of Montgomery Walker's petition for a writ of habeas corpus under 28 U.S.C. § 2254, and the respondent's motion for reconsideration of my earlier denial of his motion to dismiss.

I. BACKGROUND

In March 2012, following a jury trial, Walker was convicted in a Wisconsin court of first-degree sexual assault of a child under age twelve. In its opinion affirming Walker's conviction, the Wisconsin Court of Appeals described the facts of the case as follows:

According to the criminal complaint, Walker's eight-year-old granddaughter was in her bedroom watching a movie and coloring when Walker came into her room, took her by the hand, and led her into the laundry room. Walker then took off her pants and underwear and carried her into the bathroom where he placed her on the sink and told her to open her legs. The granddaughter told police that Walker then "put his privacy" (identified as his penis) "into her privacy" (identified as her vagina). Walker later returned to her room and motioned to her to follow him. He took her by the arm, led her to the bathroom where he removed her pants and underwear, and again "put his privacy into her privacy."

A DNA report concluded semen found on two spots on the victim's underwear matched Walker's DNA. Walker claimed innocence and indicated to the circuit court that he intended to present an alibi defense. Walker stated he wanted a lawyer to take his case to trial. Walker subsequently asked the court to allow his trial counsel to withdraw as he did not think counsel supported him in presenting his innocence claim. The court rejected his argument.

At trial, Walker presented a defense in which he denied sexually assaulting the victim and he presented an explanation regarding how his semen came to be on the victim's underwear. Walker's wife testified that she heard Walker tell the victim to go to bed and she heard the victim stomp down the hallway and slam the door. Walker's wife further testified Walker got into bed with her and she was aware that he was sleeping next to her until 6 a.m. She claimed to be aware of where Walker was during the entire time and that he had no contact with the victim.

Walker's wife also testified that she and Walker had sex the day before the assault. She wiped semen off herself with a sanitary pad and threw it in the wastebasket in the bathroom. She testified her granddaughter had the habit of playing in the bathroom garbage. Walker similarly testified that he had sex with his wife the day prior to the assault and believed the victim's mother set him up. Walker believed the victim or her mother wiped his semen from his wife's sanitary pad onto the victim's underwear.

State v. Walker, No. 2013 AP 2193-CR, 2014 WL 4192791, at *1 (Wis. Ct. App. Aug. 26, 2014).

The jury convicted Walker, and the trial court sentenced him to twenty-five years' initial confinement and seven years' extended supervision. At this point, the public defender appointed Attorney Urszula Tempska to represent Walker on appeal.

In Wisconsin, to raise certain issues on appeal, including claims of ineffective assistance of trial counsel, a defendant must first file a motion for postconviction relief in the trial court. See, e.g. State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 677-78 (Ct. App. 1996). If the motion alleges facts that, if true, would entitle the defendant to relief on a claim of ineffective assistance of trial counsel, then the trial court must hold an evidentiary hearing, known as a Machner hearing. See, e.g., State v. Allen, 274 Wis. 2d 568, 576-77 (Ct. App. 2004); State v. Machner, 92 Wis.2d 797, 804 (Ct. App.1979).A defendant's appellate counsel is usually the attorney who files the postconviction motion, and Wisconsin cases will often describe the same attorney as "postconviction counsel" and "appellate counsel." When counsel prosecutes a postconviction motion in the trial court, she acts as postconviction counsel. When she files briefs and argues the case on appeal, she acts as appellate counsel.

Attorney Tempska initiated Walker's direct appeal by filing a motion in the trial court seeking postconviction relief. The motion raised two issues: (1) Did the trial court violate Walker's right to be represented by counsel with whom he could communicate effectively when it denied trial counsel's motion to withdraw; and (2) did trial counsel render ineffective assistance during plea negotiations, which resulted in Walker's rejecting a favorable plea deal?

Regarding the first issue, the postconviction motion alleged that the relationship between Walker and his trial counsel, Alvin Richman, deteriorated during the representation, until both men felt that they were irreconcilably conflicted and unable to communicate. Prior to trial, Richman filed a motion to withdraw, citing irreconcilable differences with Walker as the reason. The trial court held a hearing on this motion and found that, despite their differences, Walker and Richman could communicate effectively. Thus, the trial court denied the motion to withdraw. In the postconviction motion, Walker alleged that, in denying the motion, the trial court applied the wrong legal standard, made clearly erroneous factual findings, and rendered a decision that could not have been reached by a rational judge applying the correct legal standard.

Regarding the second issue, the postconviction motion alleged that trial counsel did not explain, or ensure that Walker understood, the elements of the offense during orprior to plea negotiations. The motion alleged that, during the times when the prosecutor's plea offer was on the table, Walker misunderstood the statute's definition of "sexual intercourse" and how the physical evidence supported the state's case. The statute defined "sexual intercourse" as any intrusion, however slight, of any part of a person's body into the genital opening of another, and it specified that the emission of semen is not required. See Wis. Stat. § 948.01(6). According to the motion, Walker believed that, to prove him guilty, the state was required to show that he fully inserted his penis into the victim's vagina, repeatedly thrusted his penis inside her vagina, and ejaculated semen inside her vagina. Walker claimed that he believed the state's physical evidence did not show that he did these things. He alleged that although the state's evidence showed some damage inside the victim's vagina and semen on the victim's underwear, he believed the state had to show that the victim sustained greater damage to her vagina than was found and that semen was present inside her vagina. Walker alleged that, had trial counsel explained the definition of "sexual intercourse" to him and illustrated how the state's physical evidence matched the definition, he would have accepted the prosecutor's offer to reduce the charge to second-degree sexual assault of a child in exchange for his pleading guilty.

The trial court denied Walker's postconviction motion without a hearing. As to the first issue, the court concluded that counsel's motion to withdraw was properly denied. On the second issue, the court concluded that Walker had not shown that his alleged misunderstanding of the definition of "sexual assault" caused him to reject the plea offer. The court noted that Walker's defense at trial was that he had had no sexual contact with the victim at all rather than that his sexual contact with the victim did not rise to thelevel of sexual intercourse. The court stated that Walker's claim that he would have pleaded guilty if only he knew the correct definition of sexual intercourse "fl[ew] in the face of" his defense at trial. ECF No. 33-2 at p. 76 of 103. The court also observed that the trial judge explained the meaning of "sexual intercourse" on the first day of trial, while Walker was in court, and yet Walker did not at that time indicate that he wanted to accept the state's plea offer. For these reasons, the court concluded that even if trial counsel performed deficiently in failing to advise Walker of the definition, Walker did not show prejudice, in that he did not show that, but for the deficient advice, he would have pleaded guilty.

Walker, still represented by Tempska, appealed to the Wisconsin Court of Appeals and raised the same two issues that he had raised in his postconviction motion. The Wisconsin Court of Appeals rejected both claims. Regarding trial counsel's motion to withdraw, the court found that the record supported the trial court's finding that Walker and Richman could communicate effectively. Regarding trial counsel's failure to properly advise Walker of the definition of "sexual intercourse," the court found that "the record conclusively demonstrates Walker would have proceeded to trial and continued to claim his innocence whether or not counsel informed him that sexual intercourse did not require penetration or the emission of semen." State v. Walker, 2014 WL 4192791, at *2. Like the trial court, the court of appeals observed that Walker's defense at trial was that he had had no sexual contact with the victim at all. The court implied that therefore Walker's alleged misunderstanding of the definition of "sexual intercourse" could not have affected his decision to proceed to trial. Also like the trial court, the court of appeals found that the definition of "sexual intercourse" was read in open court and inWalker's presence shortly after Walker had last rejected the state's plea offer. The court reasoned that if the alleged misunderstanding of the definition of "sexual intercourse" affected Walker's decision to reject the plea offer, he could have attempted to resurrect the plea offer after he heard the definition. Because he did not do so, the court reasoned, counsel's alleged...