Opinion
Case No. 01-C-206.
June 13, 2005
ORDER AMENDING DECISION
On March 31, 2004, this court denied Kevin R. McCloud's petition for a writ of habeas corpus and entered judgment of dismissal. Subsequently, a typographical error to a citation was discovered in the decision.
NOW THEREFORE, IT IS ORDERED: that the Decision and Order Denying the Habeas Corpus Petition dated March 31, 2004, be amended accordingly:
The citation on page 5 referenced in the second line of the second full paragraph as "§ 423.23(2)" be and hereby is amended to read "§ 943.23(2)."
SO ORDERED.
AMENDED DECISION AND ORDER DENYING THE HABEAS CORPUS PETITION
Kevin McCloud, a prisoner incarcerated pursuant to a final judgment of conviction in the Circuit Court for Milwaukee County, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On June 6, 2001, the court screened his petition pursuant to Rule 4, Rules Governing Section 2254 cases, and ordered the respondent to answer the petition. Subsequently, on June 9, 2003, the court appointed counsel and set a briefing schedule on the issue of whether McCloud's convictions of robbery and operating an automobile without the owner's consent ("OAWOC") violated the double jeopardy clause of the Fifth Amendment. The issue is fully briefed and McCloud's petition is now ready for resolution.Under the standard of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a writ of habeas corpus may be granted with respect to claims adjudicated on the merits in state court if the state court decision was (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1); or (2) "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)(2).
A state court decision is "contrary to Supreme Court precedent "if the state court arrives at a conclusion opposite to that reached by the [Supreme] Court on a question of law or "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [that reached by the Supreme Court]." Williams v. Taylor, 529 U.S. 362, 405 (2000). An "unreasonable application" of the Supreme Court precedent occurs when "the state court identifies the correct legal rule . . . but unreasonably applies it to the facts of the particular state prisoner's case" or if the state court either extends a legal principle from precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407.Dixon v. Snyder, 266 F. 3d 693, 700 (7th Cir. 2001).
McCloud argues that he is entitled to federal habeas relief because OAWOC is a lesser included offense of robbery and that his convictions on both charges violates his double jeopardy rights protected by the Fifth and Fourteenth Amendments. In his brief, McCloud argues that OAWAC is a lesser included offense because under the test outlined by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299 (1932), OAWAC does not require proof of an element that robbery does not. McCloud argues that the Wisconsin Appellate Court misapplied theBlockburger test when it determined that the "drive without consent" element of the OAWOC statute is different than the robbery statute's "take without consent" element.
The respondent argues that the court is bound by the Wisconsin court's interpretation of the OAWOC statute and that because the Wisconsin Court of Appeals determined that OAWOC's "drive without consent" is not the same as "take without consent," under theBlockburger test, OAWOC is not a lesser included offense of robbery and McCloud's conviction under both statutes does not violate the doouble jeopardy protections of the Fifth and Fourteenth Amendments.
In reply, McCloud argues that the Wisconsin Court of Appeals was not interpreting the OAWOC statute. Rather, it was making a determination under Blockburger and consequently, this court is not bound by a state court's determination of constitutional law. McCloud argues that the Wisconsin Court of Appeal's determination that OAWOC is not a lesser included offense of robbery under Blockburger is an unreasonable application of federal law and therefore the court should grant his petition for a writ of habeas corpus relief.
The Fifth Amendment's protection against double jeopardy is applied to the states through the Fourteenth Amendment. Escobar v. O'Leary, 943 F.2d 711, 715 (7th Cir. 1991) (citing Benton v. Maryland, 395 U.S. 784 (1969)). The double jeopardy clause of the Fifth Amendment provides that the government shall not put a person in jeopardy of life and limb twice for the same offense. U.S. Const. Amend. V. The Fifth Amendment's double jeopardy provision protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Wilson v. Meyer, 665 F.2d 118, 120 (7th Cir. 1981). McCloud's case implicates the third option: multiple punishments for the same offense.
"The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not." Blockburger, 284 U.S. at 304. If the Blockburger test is satisfied, multiple punishments for the same act will not be allowed unless there is clear legislative intent to allow multiple punishments. Whalen v. United States, 445 U.S. 684, 692 (1980).
As characterized by the Wisconsin Court of Appeals, the Wisconsin crime of robbery under the circumstances of this case has the following elements: (1) the victim was the owner of the car; (2) McCloud took the property from a person or from the presence of the person; (3) McCloud used force against the person with the intent to overcome resistance; and (4) McCloud took the property with the intent to steal. Answer, Exhibit E at 4. In contrast, according to the Wisconsin Court of Appeals, the crime of OAWOC has the following elements: (1) McCloud intentionally took a motor vehicle without the consent of the owner; (2) McCloud drove the vehicle without the consent of the owner; and (3) McCloud knew that taking and driving the vehicle was without the owner's consent. Id.
McCloud argues that the taking element of the robbery statute is the same as the driving element of the OAWOC statute. McCloud notes that under the OAWOC statute, "drive" means to "exercise physical control over the speed and direction of the vehicle while it is in motion" and argues that contrary to an example offered by the Wisconsin Court of Appeals to support its conclusion, towing or pushing a vehicle would satisfy OAWOC's driving requirement. Thus, McCloud argues there is no real difference between the taking and driving elements of the two statutes.
A close examination of the OAWOC statute, itself, reveals that driving is a distinct element. A comparison of § 943.23(2) to § 943.23(3) highlights the distinction. To be found guilty of a felony under § 943.23(2) a person must intentionally take anddrive a vehicle. Wis. Stat. § 943.23(2). However, to be found guilty of a felony under § 943.23(3) a person only need intentionally drive or operate a vehicle. Wis. Stat. § 943.23(3). Thus, in subsection three, it is clear that one can drive or operate a vehicle without the consent of an owner without taking the vehicle. Subsection three contemplates a situation where an offender uses a vehicle without the permission of the owner, but yet intends to return the vehicle to the owner's possession. On the other hand, subsection two contemplates a situation where the intent of the offender is also to drive the vehicle, but, in addition, the offender has no intention of returning the car to the owner.
More importantly, the Wisconsin crime of robbery requires both the use of force and the intent to steal. These are elements not present in the OAWOC statute. Akin to the distinction between "taking" and "driving," there is a distinction between "taking" and "stealing." A person could intend to take and drive a car, but form no intention at all regarding whether or not the owner recovers the vehicle. However, the intent to steal requires an intent to permanently deprive the owner of possession of the vehicle. See Wis. Stat. §§ 943.32(1) and 943.20(1)(a). Thus, the robbery statute requires that the offender intend to permanently deprive the owner of possession of the vehicle.
Moreover, the robbery statute specifically requires either the use of force or the threat of force. Wis. Stat. § 943.32(1)(a)-(b). There is no "use of force" element present in the OAWOC statute. Thus, if an owner of a vehicle left his or her keys in the car, a person could take and drive the vehicle and be convicted under the OAWOC statute, but not the robbery statute.
From the plain language of the OAWOC statute, it is clear that the "driving" element is distinct from the "taking" element. Consequently, § 943.23(2) has an element that the robbery statute does not. Moreover, a comparison of the OAWOC statute and the robbery statute reveal that the two statutes require proof of elements that the other statute does not. Consequently, under theBlockburger test, § 943.23(2) is not a lesser included offense of the Wisconsin robbery statute, § 943.32(1). Accordingly, the Wisconsin Court of Appeals' decision determining the same is not contrary to, nor does it involve an unreasonable application of clearly established federal law. Nor is it based on an unreasonable determination of the facts. Thus, McCloud's petition for a writ of habeas corpus will be denied.
IT IS, THEREFORE, ORDERED that McCloud's petition for a writ of habeas corpus is denied and judgment will be entered dismissing this action.