LYNN ADELMAN, District Judge.
In this decision and order, I address pro se petitioner Jacquese Harrell's petition for a writ of habeas corpus under 28 U.S.C. § 2254.
In the early morning of October 20, 2007, Victoria Jackson was shot and killed while driving a van in Milwaukee. The police interviewed a witness who placed petitioner at the scene and claimed to have heard shots and seen petitioner with a gun. The police also interviewed two witnesses who claimed to have heard petitioner admit to the shooting. When police interviewed petitioner in the house where he was staying, they conducted a limited search and found a gun under a seat cushion. That gun was forensically tied to the bullet casings and fragments found at the murder scene. A jury convicted petitioner of first-degree reckless homicide while armed, under Wis. Stat. §§ 940.02(1), 939.63, and unlawfully possessing a firearm as a felon, under Wis. Stat. § 941.29.
Petitioner raises two claims in his petition: (1) that he received ineffective assistance of trial counsel and (2) that search of the couch cushions which led to the discovery of a gun violated his Fourth Amendment rights.
Respondent asks me to dismiss this petition because it was filed outside of the one-year limitation period under 28 U.S.C. § 2244(d). Section 2244(d)(1) imposes a one-year limitation on filing a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court. For petitioner, his one-year limitation period began to run on "the date on which the [state court] judgment became final by the conclusion of direct review or the expiration of time for seeking such review." § 2244(d)(1)(A). However, this one-year period is tolled if petitioner files a "properly filed" post-conviction motion in state court. § 2244(d)(2); see also Pace v. Guglielmo, 544 U.S. 408 (2005).
The parties agree that petitioner's one-year period for filing a § 2254 petition began to run on January 26, 2011 (upon the expiration of petitioner's 90-day period for seeking United States Supreme Court review). Thus, his one-year period for filing a § 2254 petition was set to expire on January 26, 2012. However, petitioner placed a post-conviction motion under Wis. Stat. § 974.06 in the prison mail on January 16, 2012, and the clerk of courts received the motion on February 9, 2012. Respondent argues that this motion did not toll his one-year period because it was "filed" after the one-year period on February 9, 2012, the date the clerk of courts received it. Under the mailbox rule announced in Houston v. Lack, a pro se prisoner "files" a motion "at the time petitioner deliver[s] it to the prison authorities" for mailing. 487 U.S. 266, 276 (1988). The mailbox rule applies to prisoners filing pro se habeas petitions, see Jones v. Bertrand, 171 F.3d 499, 500-02 (7th Cir. 1999), as well as to Wisconsin prisoners filing state post-conviction motions, see Ray v. Clements, 700 F.3d 993, 1004-05 (7th Cir. 2012) (holding "that the mailbox rule applies to a state pro se prisoner's post-conviction filings unless the state where the prisoner was convicted clearly rejected the rule," and that "Wisconsin has fully embraced the Houston mailbox rule"). Thus, as of January 16, 2012, petitioner's one-year limitation period was tolled while the post-conviction motion was pending. The post-conviction motion was still pending when petitioner filed his § 2254 petition on October 12, 2012, and therefore the petition is not time-barred.
I may not grant federal habeas relief to a state prisoner on the ground that evidence obtained in an unconstitutional search was introduced at trial unless the state court did not provide petitioner with a full and fair opportunity to litigate his Fourth Amendment claim. Stone v. Powell, 428 U.S. 465, 494 (1976). A petitioner receives a full and fair opportunity to litigate if: "(1) he has clearly informed the state court of the factual basis for that claim and has argued that those facts constitute a violation of his fourth amendment rights and (2) the state court has carefully and thoroughly analyzed the facts and (3) applied the proper constitutional case law to the facts." Hampton v. Wyant, 296 F.3d 560, 563 (7th Cir. 2002) (quoting Pierson v. O'Leary, 959 F.2d 1385, 1391 (7th Cir. 1992)). It is irrelevant whether the state court decided the issue correctly; the state must merely consider the appropriate body of case law. Id. Even an "egregious error" is not enough to support a writ of habeas corpus; "a blunder, no matter how obvious, matters only in conjunction with other circumstances that imply refusal by the state judiciary to take seriously its obligation to adjudicate claims under the fourth amendment." Id. at 564; see also Cabrera v. Hinsley, 324 F.3d 527, 532 (7th Cir. 2003) ("`[F]ull and fair' guarantees the right to present one's case, but it does not guarantee a correct result.").
Petitioner clearly informed the state court of the factual basis of his Fourth Amendment claim and argued that those facts amount to a constitutional violation. He filed a motion to suppress, and the trial court held a suppression hearing. The trial court denied that motion, and its decision was reviewed and affirmed by the court of appeals. The Wisconsin Supreme Court denied discretionary review of the issue. The appeals court described his claim as follows:
One of the officers who led Harrell back into the house testified at the suppression hearing that before he would let Harrell sit on one of the chairs, the officer checked it to make sure there were no weapons that Harrell could get:
The officer looking beneath the seat cushion found "suspected cocaine." Then:
Resp. Ex. D at 4-6, ECF No. 19-4.
The appeals court addressed the merits of his Fourth Amendment claims and thoroughly analyzed the facts of petitioner's claim, stating:
Harrell does not dispute that the officers went to where they believed Harrell was staying because they suspected that he was involved in the Jackson shooting. Thus, the two aspects of Terry were satisfied: (1) the officers suspected that Harrell had committed a violent crime; and (2) reasonable prudence dictated that they keep Harrell from having possible access to a gun. Although he asserts that the officers were not lawfully in the house, the trial court found that by virtue of Harrell's house-sitting status, he could and did give them permission to continue their questioning of him inside the house. Those findings are not clearly erroneous. See State v. Pickens, 2010 WI App 5, ¶ 39, 323 Wis.2d 226, 244-245, 779 N.W.2d 1, 10 (common dominion authorizes persons to give consent for search).
Once the officers found the suspected cocaine, of course, they could also legitimately search the area near Harrell as an incident to Harrell's pending arrest, as well as to ensure their safety when they directed him to sit in the second chair. See Chimel, 395 U.S. at 763 ("A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area `within his immediate control'—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence."); see also State v Denk, 2008 WI 130, ¶ 33, 315 Wis.2d 5, 18, 758 N.W.2d 775, 782 ("[W]arrantless search `may be incident to a subsequent arrest if the officers have probable cause to arrest before the search.") (quoted source omitted). Resp. Ex. D at 7-9, ECF No. 19-4.
I cannot say that the appeals court applied the wrong constitutional case law to petitioner's Fourth Amendment claim. In analyzing the initial search that turned up the suspected cocaine, the appeals court applied Terry v. Ohio and its progeny, the correct body of law for analyzing pre-arrest searches. In analyzing the second search that turned up the gun, the appeals court applied Chimel v. California and its progeny, the correct body of law for analyzing searches incident to arrest. Because the state court applied the correct body of constitutional law, I cannot review its decision to determine whether it was correct. Nor is it relevant, as petitioner argues, that the appeals court applied different case law than the trial court. Cabrera, 324 F.3d at 532 (rejecting the argument that "the fact that the basis of the decision changed from one court to another shows that the determinations did not meet the test for a full and fair hearing"). Thus, I will deny petitioner's petition for a writ of habeas corpus based on his Fourth Amendment claim.
To establish a claim for ineffective assistance of trial counsel, a petitioner must show that his lawyer performed deficiently and that he suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687-94 (1984). To establish deficient performance, a petitioner must demonstrate that his lawyer's representation fell below an objective standard of reasonableness as measured by prevailing professional norms. Id. at 687-88. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Id. To establish prejudice, a petitioner must show that there is a reasonable probability that but for his lawyer's deficient performance, the result of the proceeding would have been different. Id. at 694.
Petitioner argues that his trial counsel was ineffective in three respects. First, he argues that counsel failed to impeach two key prosecution witnesses. Second, he argues that counsel failed to properly investigate his alibi and to call a witness who could provide him with an alibi. Third, he argues that counsel failed to object to testimony by detectives that was inadmissible hearsay. The Wisconsin Court of Appeals adjudicated petitioner's ineffective assistance of counsel claims on the merits; therefore I may grant relief only if the adjudication resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court. § 2254(d).
The Wisconsin Court of Appeals described the background of petitioner's first ineffective-assistance claim as follows:
Antwain Childs, another friend of Harrell's friends, was also staying at the house on 25th and Burleigh. He testified that Harrell went out on the night Jackson was shot, and that before he left he saw Harrell take a gun with him. Childs said it was "[a] nine." He identified the gun tied to Harrell as the gun he saw Harrell take with him. Childs also told the jury that some time around 3 a.m., Harrell returned to the house with "John," who was driving a Monte Carlo; Harrell told Childs that something had gone terribly wrong:
Resp. Ex. D at 2-4, ECF No. 19-4.
The court rejected petitioner's claim that counsel was ineffective in failing to impeach David and Childs, reasoning as follows:
Resp. Ex. D at 10-12, ECF No. 19-4.
Because the court applied the correct Strickland standard, the court's decision was not contrary to clearly established federal law. Similarly, the court's analysis under Strickland cannot be said to be an unreasonable application of clearly established federal law as determined by the United States Supreme Court. Under Strickland, petitioner must show that his attorney's performance was both deficient and prejudicial. Strickland, 466 U.S. at 687. The appeals court gives several reasons why it believed that even if petitioner's trial counsel had impeached the prosecution's witnesses, the result of the case would not be different. I cannot say that the court's analysis was unreasonable.
Petitioner also argues that his trial counsel performed deficiently by failing to investigate his alibi and call Jarvis Brent as a witness to testify to his alibi. According to the appeals court, Brent signed an affidavit in which he "avers that he was with Harrell continuously from `around 8:00pm' on `[t]he night before Jacquese Harrell was arrested' until Harrell left with Brent's cousin something after `around 3:00-4:00am.'" Resp. Ex. D at 12, ECF No. 19-4. The court rejected this claim also, reasoning:
Resp. Ex. D at 12, ECF No. 19-4.
Again, the court applied the correct Strickland standard in finding that counsel's failure to call Brent as a witness did not affect the outcome of the trial, and thus its decision was not contrary to clearly established federal law. Nor was the court's reasoning contrary to clearly established federal law as determined by the United States Supreme Court. Petitioner admitted in his court of appeals brief and in his habeas brief that his attorney did investigate his alibi but chose not to call Brent as a witness "because he had been convicted of a crime or crimes." Pet'r's Br. in Supp. at 11-12, ECF No. 23. It was not unreasonable for the appeals court not to question counsel's strategic decision in not calling Brent, and I will not do so now. Strickland, 466 U.S. at 690 (stating that strategic choices made after investigation "are virtually unchallengable.").
Finally, petitioner claims that his trial counsel was ineffective for failing to object to testimony of the detectives which he considers inadmissible hearsay. Specifically, petitioner challenges the detectives' testimony regarding what other prosecution witnesses told them. The appeals court found that these statements were admissible under Wis. Stat. § 908.01(4)(a) because they were prior statements that were inconsistent with the declarants' trial testimony. Because this is a state law issue, I may not review the state court's decision. See Buie v. McAdory, 341 F.3d 623, 625 (7th Cir. 2003) ("[A]n error of state evidence law cannot be the basis of federal collateral relief.")
Thus, I will deny petitioner's petition for a writ of habeas corpus based on his ineffective assistance of counsel claims.
