Woods v. Kemper, Case No. 13-CV-973

• Decision Date: 24 February 2014
• Docket Number: Case No. 13-CV-973
• Citation: Woods v. Kemper, Case No. 13-CV-973 (E.D. Wis. Feb 24, 2014)
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: STEPHEN LYNN WOODS, Petitioner, v. PAUL KEMPER, Warden, Racine Correctional Instutiton, Respondent.

STEPHEN LYNN WOODS, Petitioner, v. PAUL KEMPER, Warden, Racine Correctional Instutiton, Respondent.

Case No. 13-CV-973

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

Dated: February 24, 2014

DECISION AND ORDER DENYING PETITION

FOR WRIT OF HABEAS CORPUS AND DISMISSING CASE

Stephen Lynn Woods ("Woods"), a prisoner in Wisconsin custody, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Woods was convicted of one count of armed robbery. (Habeas Petition at 2, Docket # 1.) Woods was sentenced to ten years of initial confinement, followed by five years of extended supervision. (Answer, Ex. A at 124, Docket # 12-1.) Woods alleges that his conviction and sentence are unconstitutional.

The parties have briefed the petition for a writ of habeas corpus and the petition is ready for disposition. For the reasons stated below, the petition for writ of habeas corpus will be denied and the case dismissed.

BACKGROUND

A Milwaukee County jury found Woods guilty of one count of armed robbery with threat of force. (Docket # 12-1.) Woods' charges stem from an incident that occurred in the early morning hours of May 20, 2006. A convenience store employee saw a man bring a box of white Tic Tacs to the store's counter. (State v. Woods, Appeal No. 2010AP2039 (May 10, 2011), Answer, Ex. F, Docket# 12-6 at 2.) As the employee went to scan the Tic Tacs, the man displayed a handgun and told her to empty the cash register drawer. (Id.) The employee gave the man the money, at which point he told her to get on the floor. (Id.) When the employee heard the man leave the store, she called 911. (Id.) The employee later realized that the box of white Tic Tacs was no longer on the counter. (Id.) The police arrived at the store shortly after the incident and found an unopened box of Tic Tacs in the parking lot, approximately thirty feet from the entrance. (Id.) Although a fingerprint was found on the Tic Tac box, the State did not match the print to Woods until two years later. (Id.) Upon doing so, the police presented the store employee with a photo display. (Id.)

The employee testified at Woods' trial that she selected one of the photographs because "there were certain features about [the individual's] face that were familiar to me, the jaw[ ] line specifically, expression in his face, just brought back like [that] feeling of the robbery again." (Id. at 2-3.) She described feeling terror upon seeing the photograph and explained it was a gut reaction. (Id. at 3.) She further testified that she could not, however, say with one hundred percent certainty that the individual in the photograph—who turned out to be Woods—was the robber. (Id.) During trial, the employee testified that Woods looked different in court than when she saw him in May 2006 and in the photograph as part of the display. (Id.) She further testified that seeing Woods in person did not give her the same feeling of terror she experienced when she saw his photograph. (Id.) She acknowledged having doubts as to whether Woods was the person responsible for the robbery. (Id.)

On direct appeal, Woods argued there was insufficient evidence to support his conviction. (Docket # 12-6.) The Wisconsin Court of Appeals upheld Woods' conviction (Id.) and the Wisconsin Supreme Court denied his petition for review (Attachment to Habeas Petition at 7, Docket # 1-1.) Woods subsequently filed a pro se petition for state habeas corpus relief pursuant to State v. Knight,168 Wis. 2d 509, 484 N.W.2d 540 (1992), arguing that his appellate counsel was ineffective for failing to pursue three particular issues on appeal. (State ex rel. Woods v. Paquin, Appeal No. 2012AP905 (Feb. 14, 2013), Answer, Ex. B, Docket # 12-2.) Specifically, Woods argued his appellate counsel should have challenged the photo array identification as unduly suggestive; he should have raised suppression of the employee's identification as unfairly prejudicial; and finally, appellate counsel should have challenged the State's alleged commentary on Woods' right to remain silent. (Id.) The Wisconsin Court of Appeals denied Woods' Knight petition on February 14, 2013. (Id.) The Wisconsin Supreme Court denied review on August 1, 2013. (Answer, Ex. C, Docket # 12-3.) Woods filed the instant petition for a writ of habeas corpus on August 28, 2013. (Docket # 1.)

STANDARD OF REVIEW

Woods' petition is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub.L. No. 104-132, 100 Stat. 1214, 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, 870-77 (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, 120 S.Ct. 1495, 1519 (2000)). The court of appeals for this circuit recognized the narrow application of the "contrary to" clause:

[U]nder 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 further explained that the "unreasonable application of" clause was broader and "allows a federal habeas court to grant habeas relief whenever the state court 'unreasonably applied [a clearly established] principle to the facts of the prisoner's case.'" Id. (quoting Williams, 120 S.Ct. at 1523).

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 "if it 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 that:

Unreasonableness is judged by an objective standard, and under the "unreasonable application"clause,"a federal habeas court may not issue the writsimply 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, 120 S.Ct. at 1522), cert. denied, 532 U.S. 951 (2001). Accordingly, 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 627.

ANALYSIS

In his petition, Woods challenges his conviction on four grounds: (1) there was insufficient evidence to sustain his conviction; (2) ineffective assistance of appellate counsel; (3) the eye witness identification should have been suppressed because the photo array was unduly suggestive; and (4) the state violated his Fifth Amendment right against self-incrimination. (Docket # 1 at 6-10.) I address each in turn.

1. Sufficiency of the Evidence

Woods argues there was insufficient evidence to sustain his armed robbery conviction. The Due Process Clause of the Fourteenth Amendment "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime for which he is charged." In re Winship, 397 U.S. 358, 364 (1970). When insufficiency of evidence is asserted as the basis for a habeas petition, the petitioner must show "'upon the record evidence adduced at the trial no rational trier of fact could have found proof beyond a reasonable doubt.'" Cabrera v Hinsley, 324 F.3d 527, 533 (7th Cir. 2003) (citing Jackson v. Virginia, 443 U.S. 307, 319, 324 (1979)). The inquiry does not require the federal habeas court to "ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt." Jackson, 443 U.S. at 319 (citing Woodby v. INS, 385 U.S. 276, 282 (1966)). Instead, the relevant question is whether, after viewing the evidence inthe light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id.

A federal habeas court determines the sufficiency of the evidence in reference to the substantive elements of the criminal offense as defined by state law. See Jackson, 443 U.S. at 324 n.16. Under Wisconsin law, a defendant is guilty of armed robbery, Wis. Stat. § 943.32(1)(b) and (2), if the State proves that the defendant forcibly took property, owned by another, with the intent to steal, and used or threatened to use a dangerous weapon. Wis. JI-Crim 1480 (2009).

In this case, in considering Woods'...