Richard Plank v. Denise Symdon , 697 F. App'x 464 ( 2017 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 20, 2017*
Decided September 25, 2017
Before
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 17-1640
RICHARD C. PLANK, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 13-C-1281
DENISE SMYDON and C. N. Clevert, Jr.
HANS RUFENACHT, Judge.
Defendants-Appellees.
ORDER
Richard Plank, a Wisconsin prisoner convicted of battery and disorderly conduct,
appeals from the district court’s denial of his petition for a writ of habeas corpus under
28 U.S.C. § 2254. Although the district court denied relief on all of Plank’s claims, it
granted a certificate of appealability on the issue whether his state pretrial counsel
provided ineffective assistance when she withheld exculpatory evidence from him.
Because the Wisconsin court of appeals reasonably concluded that Plank could not have
been prejudiced by any possible error by his attorney, we affirm.
*
We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 17-1640 Page 2
Plank was charged with battering his live-in girlfriend after she told investigators
that he sliced her in the leg with a knife and broke her nose punching her in the face. A
week before trial, the state court permitted Plank’s attorney, Katherine Seifert, to
withdraw and ordered her to give him all discovery materials in her possession. She
provided Plank discovery materials obtained from the state, including a compact disk
that contained the state’s photographs of the victim and crime scene.
Plank represented himself at a bench trial, with Seifert serving as stand-by
counsel. Plank put forward a defense that the victim cut herself after he told her he was
moving to another state, and that he did not break her nose because—as the state’s
photos confirmed—she had no facial bruising or swelling. Among the evidence
considered by the court were two medical reports from an emergency-room doctor who
treated the victim on the night of the incident (one report mentioned the victim’s broken
nose, the other report did not), as well as a lab report that found no trace of the victim’s
blood on knives seized from the crime scene.
The court found Plank guilty. Although the weapon was never located, the court
determined that some of the state’s photos substantiated the victim’s credible testimony
that Plank beat and cut her.
Plank filed a post-conviction motion for a new trial and alleged deficiencies in
Seifert’s handling of his case before trial. He faulted her for waiting until she withdrew
from the case to share with him the state’s photos, and he alleged that she never gave
him the lab report or the emergency-room doctor’s report that omitted mention of the
victim’s broken nose. At a hearing on the motion, Seifert testified that she gave Plank all
discovery materials she received from her predecessor, who told her that Plank had
been provided all discovery materials obtained from the state. Seifert added that she
was unsure whether the lab report was included in the discovery materials, but she said
she had discussed all of the evidence with Plank before she withdrew from the case.
The court credited Seifert’s testimony and denied Plank’s motion. The court
concluded that counsel had acted “within professional norms,” and that there was no
reasonable probability that her allegedly deficient performance while she was still
representing him affected the outcome of the trial.
Plank appealed the denial of his post-conviction motion and maintained that
Seifert’s failure to timely share these exculpatory materials constituted ineffective
assistance. The Wisconsin court of appeals summarily affirmed. Relying on Strickland v.
Washington, 466 U.S. 668 (1984), the appellate court concluded that Plank failed to
No. 17-1640 Page 3
establish deficient conduct by Seifert or resulting prejudice. The Wisconsin Supreme
Court denied further review.
Plank petitioned in federal court for a writ of habeas corpus, maintaining, as
relevant here, that Seifert was ineffective for failing to timely share the state’s photos of
the victim, the emergency-room doctor’s report that did not mention the broken nose,
and the lab report that detected no trace of the victim’s blood on any knife found at the
crime scene.
The district court denied Plank’s petition, concluding that the Wisconsin court of
appeals did not unreasonably apply the general standard for ineffective-assistance
claims established by Strickland. The district court acknowledged that the appellate
court did not address Plank’s specific charges that Seifert withheld exculpatory
materials, but found justifiable the appellate court’s conclusion that Plank had not
established deficient conduct on her part or resulting prejudice.
Plank’s brief on appeal is difficult to parse, see FED. R. APP. P. 28(a)(8); Anderson v.
Hardman, 241 F.3d 544, 545–46 (7th Cir. 2001), but we understand him to assert that
attorney Seifert’s delay in giving him exculpatory evidence undermined his preparation
for trial.
We agree with the district court that the Wisconsin court of appeals reasonably
applied Strickland. Plank needed to demonstrate to the state appellate court that a
reasonable probability existed that the outcome of his trial was affected by his
attorney’s conduct, see Harrington v. Richter, 562 U.S. 86, 104 (2011); Strickland, 466 U.S.
at 693; Carter v. Duncan, 819 F.3d 931, 944 (7th Cir. 2016), and specifically Seifert’s delay
or failure to share exculpatory evidence. All of this exculpatory evidence was, however,
presented to the trial court. The court learned about the lab report during the cross-
examination of a police officer, and from this testimony determined that the crime
weapon was not located. The court also considered Plank’s explanations of the state’s
photos and the emergency-room doctor’s report, but instead chose to credit the victim’s
testimony. Plank has not told us what he might have done differently at trial had he
obtained this evidence before Seifert withdrew, and thus does not offer any reason to
conclude that he was prejudiced by any delay.
Plank’s remaining arguments exceed the scope of the issue certified for this
appeal, and our review is limited to issues in the certificate of appealability,
see 28 U.S.C. § 2253(c); Buck v. Davis, 137 S. Ct. 759, 773 (2017); Peterson v. Douma,
751 F.3d 524, 529 (7th Cir. 2014). And although we may construe arguments of pro se
No. 17-1640 Page 4
petitioners as implicit requests to expand the certificate, see Thompson v. United States,
732 F.3d 826, 831 (7th Cir. 2013), we already have rejected a request from Plank to
expand the certificate to cover these same issues, and we do so again here.
The district court’s judgment denying Plank’s petition is
AFFIRMED.