Hatcher, Mychael v. Tegels, Lizzie

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
MYCHAEL R. HATCHER,
Petitioner,
v.
WARDEN JOY TASSLER,1
Respondent.
OPINION AND ORDER
18-cv-75-wmc
Among other offenses, a jury found petitioner Mychael R. Hatcher guilty of second-
degree sexual assault of an intoxicated person in Brown County Circuit Court Case No.
2010-CV-770. He now seeks a writ of habeas corpus under 28 U.S.C. § 2254, arguing that
he was denied effective assistance of counsel because his trial attorney failed to file a motion
to suppress a statement he made to police before receiving the warnings required by
Miranda v. Arizona, 384 U.S. 436 (1966).2 (Dkt. #28.) The court will deny his petition
and dismiss this action for reasons explained below.
1 When the petition was filed, Hatcher was confined at the Jackson Correctional Institution, where
Lizzie Tegels is the warden. (Dkt. #1.) Because Hatcher is now at Kettle Moraine Correctional
Institution, the court substitutes Warden Joy Tassler as the respondent under Rule 2(a) of the Rules
Governing Section 2254 Cases.
2 Although Hatcher raised other claims in his original and amended petitions (dkt. #1, #14),
he has elected to proceed only with his ineffective-assistance claim for failing to file a motion
to suppress under Miranda. (Dkt. #28.) Accordingly, the court confines its analysis to that
claim.
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BACKGROUND3
On July 2, 2010, Hatcher went out drinking with his girlfriend, Lisa Ewald, and two
of Ewald’s friends, Erin Peterson and T.T.4 Later that night, Hatcher, Ewald, and T.T.
returned to Ewald’s residence in De Pere, which is in Brown County, Wisconsin. The
following morning, T.T. called Peterson and told her that Hatcher had raped her. Peterson
advised T.T. to call the police.
A. The Investigation
In response to the reported sexual assault, three police officers arrived at Ewald’s
apartment at 6:42 a.m. on July 3, 2010. Officer Brian Arkens located Hatcher in an
upstairs bedroom and asked him to come downstairs. Once they were downstairs, Arkens
advised Sergeant Jeremy Schnurer that Hatcher was the suspect. As officers separated the
occupants of the residence, Schnurer asked Hatcher to step outside and speak with him.
Schnurer explained that they were investigating an alleged sexual assault and that he was
the suspect. When first questioned, Hatcher gave police a false name and denied having
sex with the victim, stating that he “never touched her” because “she was so drunk.” (Dkt.
#23-4, at 1.)
3 Unless otherwise indicated, the following facts are taken from the state court record, which is
attached to the respondent’s initial brief in opposition. (Dkt. #18.)
4 The respondent refers to the victim by her initials T.T. and the Wisconsin Court of Appeals
referred to her by the pseudonym “Williams.” (Dkt. #18-2.) Because the case involves a sexual
assault, this court will also refer to the victim by her initials (“T.T.”) to protect her privacy. See 18
U.S.C. § 3771(a)(8) (stating that crime victims have “[t]he right to be treated with . . . respect for
the victim’s dignity and privacy”); Doe v. Blue Cross & Blue Shield United of Wisc., 112 F.3d 869, 872
(7th Cir. 1997) (“fictitious names are allowed when necessary to protect the privacy of children,
rape victims, and other particularly vulnerable parties or witnesses”).
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After additional questioning, in which Hatcher continued to deny having sex with
T.T. while giving a false name, Hatcher was taken to the police station in handcuffs, finger-
printed for identification, and advised of his Miranda rights. During the ensuing
interrogation by a detective, Hatcher admitted having sex with T.T., but claimed that it
was consensual. Hatcher was then charged in a criminal complaint with the following
counts as a repeat offender: second-degree sexual assault of an intoxicated person (Count
One); obstructing or resisting an officer (Count Two); and misdemeanor bail jumping
(Count Three).5
In the meantime, an officer escorted T.T. to a local hospital for a physical
examination by a Sexual Assault Nurse Examiner (a “SANE nurse”), who collected swabs
for DNA testing. Hatcher was identified as the source of male DNA recovered from sperm
inside T.T.’s vagina. Photographs taken by an officer also showed bruising on T.T.’s back
and shoulder that were consistent with being held down. In addition, a report showed that
T.T.’s blood alcohol concentration was .083 grams per 100 milliliters at the hospital on
5 In particular, Hatcher was charged with violating Wis. Stat. § 940.225(2)(cm), which
prohibits:
sexual intercourse with a person who is under the influence of an intoxicant to
a degree which renders that person incapable of giving consent if the defendant
has actual knowledge that the person is incapable of giving consent and the
defendant has the purpose to have sexual contact or sexual intercourse with the
person while the person is incapable of giving consent.
(Tr. 2a (dkt. 18-19) at 113.) The obstruction charge was based on the fact that Hatcher gave
a false name when he was initially questioned by police (id. at 118), and the bail jumping charge
was based on the fact that, by committing the obstruction offense, Hatcher violated the
conditions of his bond in another case, which required him to have no further law violations
(id. at 119-21). Two other charges (disorderly conduct and identity theft) were dropped by
the state on the first day of trial.
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the morning of July 3, 2010. The report estimated that T.T., who was 5’2” and weighed
105 pounds, had a blood alcohol concentration between .143 and .233 grams per 100
milliliters at the time of the sexual assault, and between .183 and .333 grams per 100
milliliters at the time she left the bar the previous evening. By way of comparison, a
detective clarified (later during the trial) that the prohibited blood alcohol concentration
for driving while under the influence of intoxicating beverages is .08 grams per 100
milliliters.
B. The Trial
At trial, T.T. testified that she and Peterson met up with Ewald at the Stadium View
bar in Green Bay at around 5:00 or 5:30 p.m. on July 2, 2010, and that Hatcher joined
them later. T.T. estimated that she consumed five or six beers and at least two shots.
Peterson testified that she left the bar first because she had other plans that night.
Sometime after 10:00 p.m., T.T., Ewald, and Hatcher departed for Ewald’s
apartment, where T.T. was planning to spend the night. Because T.T. was drunk, Ewald
testified that she had to be helped from the car and carried up the stairs to her spare
bedroom. Hatcher then walked to a nearby bar and returned at closing time.
T.T. testified that she passed out in Ewald’s car on the way home from the bar and
had no recollection of being carried to the spare bedroom. The next thing she remembered
was Hatcher being on top of her and forcing his penis into her vagina from behind as she
was laying face down on the bed. T.T. testified that she was unable to move or talk during
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the incident, which occurred in the middle of the night. She then passed out. When T.T.
awoke that morning, she called Peterson and then the police.
Officer Arkens testified that when he arrived at Ewald’s residence that morning,
Ewald confirmed that T.T. had been “extremely intoxicated” the previous evening.
Sergeant Schnurer testified that when he asked to speak with Hatcher about the alleged
sexual assault, Hatcher identified himself as “Darren James” and denied any involvement.6
When Schnurer asked Hatcher if he had consensual sexual contact with T.T., his response
was that he “never touched her, she was so drunk.” Schnurer gave Hatcher several more
opportunities to tell him what happened, but Hatcher continued to deny having any sexual
contact with T.T. At that point, Hatcher was taken to the police station and interviewed
by a detective.
In contrast, after arriving home from the local bar at around 2:30 a.m., Hatcher
testified that he brought T.T. a glass of water, they had a conversation and then had
consensual sex. Hatcher admitted that both of them were “pretty drunk” that night, but
implied that T.T. was not too intoxicated to consent. Hatcher further explained that he
initially lied to police about whether he had consensual sex with T.T. because his girlfriend
Ewald was nearby when he was being questioned in the apartment.
The jury found Hatcher guilty of second-degree sexual assault of an intoxicated
person, as well as guilty on the other counts of obstructing an officer and bail jumping. On
6 According to the police report, Hatcher was eventually identified by the FBI through his
fingerprints. (Dkt. #23-4, at 2.) At that time, he had multiple outstanding warrants out of the
Brown County Sheriff’s Office for domestic violence, battery, and probation violations. (Id.)
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the sexual assault offense, the circuit court sentenced Hatcher to 15 years of initial
confinement followed by 15 years of extended supervision. (Dkt. #18-1.) As for the other
counts of conviction, the circuit court sentenced Hatcher to 1 year of initial confinement
followed by 1 year of extended supervision, with all sentences to run concurrently. (Id.)
C. Post-Conviction Proceedings
Hatcher filed a post-conviction motion, arguing that he was denied effective
assistance of counsel because his trial attorney did not file a motion to suppress his initial
statement to Sergeant Schnurer in which Hatcher denied touching T.T. because “she was
so drunk,” having been given without the benefit of any Miranda warnings. The circuit
court held an evidentiary hearing on that motion. Hatcher testified that after being
awakened by police at Ewald’s residence early on the morning of July 3rd, Sergeant
Schnurer asked him to come outside and sit on the porch. Then after Schnurer frisked
Hatcher, who was wearing only shorts and shoes, Schnurer questioned Hatcher for 30-40
minutes about whether he had sex with T.T. Hatcher also asserted that Schnurer’s report
was incorrect and that he initially denied having sex with T.T. because he was too drunk.
During this initial period of questioning, Hatcher testified further that Schnurer refused to
allow him to use the bathroom or get a cigarette out of the kitchen. Finally, Hatcher’s
defense counsel testified that he considered filing a Miranda motion, but had concluded
that the circumstances were not of the sort that warranted a motion to suppress.
The circuit court found Hatcher’s attorney “credibly testified at the postconviction
hearing that when he evaluated Hatcher’s case he did not see a Miranda violation.” (Dkt.
#18-5, at 14.) The court also found Hatcher had failed to prove that he was subjected to
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a “custodial interrogation” when questioned by Schnurer at the scene of the offense or that
Hatcher would have prevailed on a motion to suppress under Miranda if one had been filed.
(Id. at 17.) “[B]ecause a motion to suppress would have been meritless,” and Hatcher had
failed to establish prejudice, the circuit court found defense counsel was not ineffective or
deficient. (Id. at 29.)
The Wisconsin Court of Appeals affirmed the circuit court’s decision, concluding
that Hatcher failed to show he was “in custody at the time he made the challenged
statement, such that Miranda warnings were required,” and thus, Hatcher failed to establish
that his trial attorney was ineffective for failing to file a suppression motion. (Dkt #18-2,
¶ 76.) The Wisconsin Supreme Court summarily denied Hatcher’s petition for
discretionary review. (Dkt. #18-3.)
OPINION
Hatcher now seeks a federal writ of habeas corpus, claiming that his trial attorney’s
failure to file a motion under Miranda to suppress his initial statement to police denying
having sex with T.T. because “she was so drunk” constituted ineffective assistance of
counsel. (Dkt. #28.) Because T.T.’s ability to consent was a central issue at trial, the State
highlighted Hatcher’s statement during its opening statement, during Sergeant Schnurer’s
testimony, and again during both closing and rebuttal arguments. (Tr. 1a (dkt. #18-17)
126:14-15; Tr. 1p (dkt. #18-18) 140:15; Tr. 2a (dkt. #18-19) 130:14, 139:4, 149:23-24,
150:8-9.) The State also used the statement to impeach Hatcher’s testimony that T.T.
was not too intoxicated to consent. (Tr. 2a (dkt. #18-19) 67:23-68:1, 69:13-20.)
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After finding that defense counsel was not ineffective, the Wisconsin Court of
Appeals rejected Hatcher’s claim under Strickland v. Washington, 466 U.S. 668 (1984) and
State v. Jackson, 229 Wis. 2d 328, 600 N.W.2d 39 (Ct. App. 1999). In particular, the court
of appeals noted under Jackson, that absent proof a suppression motion would have
succeeded, defendant failed to show ineffective assistance. Id. at 344 (citing Kimmelman v.
Morrison, 477 U.S. 365, 375 (1986)). Because Hatcher’s ineffective-assistance claim was
adjudicated on the merits in state court, this ruling is subject to a “highly deferential
standard” of review under 28 U.S.C. § 2254(d). See Renico v. Lett, 559 U.S. 766, 773
(2010) (§ 2254(d) “imposes a ‘highly deferential standard for evaluating state-court
rulings,’ . . . [which] ‘demands that state-court decisions be given the benefit of the
doubt.’”) (citations omitted).
Under this deferential standard, a federal habeas corpus court may not grant relief
unless the state court’s adjudication “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[.]” 28 U.S.C. § 2254(d)(1). In particular, an
“unreasonable application” only occurs “if the state court correctly identifies the governing
legal principle from [Supreme Court] decisions but unreasonably applies it to the facts of
the particular case.” Bell v. Cone, 535 U.S. 685, 694 (2002). This is a high bar: the state
court’s application of federal law “must be objectively unreasonable, not merely wrong;
even clear error will not suffice.” Woods v. Donald, 575 U.S. 312, 316 (2015) (per curiam)
(internal quotation marks and citation omitted). Thus, a state prisoner seeking habeas
relief “must show that the state court’s ruling on the claim being presented in federal court
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was so lacking in justification that there was an error well understood and comprehended
in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter,
562 U.S. 86, 103 (2011).
Further, to the extent that a petitioner challenges a factual finding on which the
state court’s adverse ruling rests, he must show that the finding was unreasonable in light
of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d)(2). State
court findings of fact and credibility determinations are presumed correct on federal habeas
review, unless the petitioner rebuts that presumption with “clear and convincing” evidence
to the contrary. 28 U.S.C. § 2254(e)(1); Woolley v. Rednour, 702 F.3d 411, 426-27 (7th
Cir. 2012). The presumption of correctness also applies to factual findings made by a state
court of appeals based on the trial-court record. Sumner v. Mata, 449 U.S. 539, 546-47
(1981).
For reasons discussed in more detail below, Hatcher does not show that the last
state court to analyze his claim -- the Wisconsin Court of Appeals -- unreasonably denied
relief or that its decision was based on an unreasonable determination of the facts. Wilson
v. Sellers, 584 U.S. 122, 125 (2018) (holding that when a state supreme court decision does
not come accompanied by reasons, “the federal court should ‘look through’ the
unexplained decision to the last related state-court decision that does provide a relevant
rationale”).
As the Wisconsin Court of Appeals explained, to prevail on an ineffective-assistance
claim a defendant must show that counsel’s performance fell below an objective standard
of reasonableness and that prejudice resulted from that deficiency. Strickland, 466 U.S. at
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687-88, 693. So, too, must judicial review of trial counsel’s performance “be highly
deferential,” with “every effort … made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time.” Id. at 689. Thus, “a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the “presumption that, under the
circumstances, the challenged action ‘might be considered sound trial strategy.’” Id. “The
question is whether an attorney’s representation amounted to incompetence under
‘prevailing professional norms,’ not whether it deviated from best practices or most
common custom.” Richter, 562 U.S. at 105 (quoting Strickland, 466 U.S. at 690).
To establish prejudice, a defendant must “show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. Specifically, where defense counsel’s failure to file
a motion to suppress is the principal allegation of ineffectiveness, the defendant must prove
that the motion was meritorious and that there is a reasonable probability that the verdict
would have been different absent the excludable evidence. Kimmelman, 477 U.S. at 375;
see also Shell v. United States, 448 F.3d 951, 955 (7th Cir. 2006) (“When the claim of
ineffective assistance is based on counsel’s failure to present a motion to suppress, we have
required that a defendant prove the motion was meritorious.”) (citations omitted).
Otherwise, “counsel cannot have been ineffective for failing to pursue what . . . would have
been a meritless suppression motion.” United States v. Stewart, 388 F.3d 1079, 1085 (7th
Cir. 2004).
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Petitioner contends that counsel should have filed a motion to suppress his
statement to Sergeant Schnurer because it was made before he received his Miranda
warnings, which required police to advise him that: he could remain silent; anything he
said could be used against him in court; and he was entitled to an attorney, either retained
or appointed. Miranda, 384 U.S. at 444. Since Miranda warnings are due only when a
suspect interrogated by the police is “in custody,” Thompson v. Keohane, 516 U.S. 99, 102
(1995), the merits of a motion to suppress turns on whether petitioner was, in fact, “in
custody” when he denied touching T.T.
“Custody,” when used in reference to Miranda, “is a term of art that specifies
circumstances that are thought generally to present a serious danger of coercion.” Howes
v. Fields, 562 U.S. 499, 508-09 (2012). Determining whether someone is in custody,
therefore, depends upon “the objective circumstances of the interrogation.” Stansbury v.
California, 511 U.S. 318, 323 (1994) (per curiam). “In determining whether an individual
was in custody, a court must examine all of the circumstances surrounding the
interrogation, but the ultimate inquiry is simply whether there [was] a formal arrest or
restraint on freedom of movement of the degree associated with a formal arrest.” Id. at
322 (internal quotations and citations omitted). “Factors to consider in assessing custody
‘include the location of the questioning, its duration, statements made during the
interview, the presence or absence of physical restraints during the questioning, and the
release of the interviewee at the end of the questioning.’” Stechauner v. Smith, 852 F.3d
708, 715 (7th Cir. 2017) (quoting Howes, 565 U.S. at 509 (citations omitted)).
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Nevertheless, no one factor is “dispositive of the custody issue.” Stansbury, 511 U.S. at
325.
In considering petitioner’s ineffective-assistance claim, the Wisconsin Court of
Appeals summarized Sergeant Schnurer’s trial testimony about their interaction on the
morning of July 3, 2010, along with Hatcher’s testimony at the post-conviction hearing, as
follows:
¶ 59 At trial, sergeant Jeremy Schnurer testified he was one of the
officers who responded to [Ewald’s] residence on the morning of July 3,
2010. After entering the residence, Schnurer observed Hatcher “walking
down the stairs from upstairs in the apartment.” Schnurer asked Hatcher to
come outside and talk to him. Hatcher gave Schnurer a false name and stated
he did not know “what was going on.” Schnurer then informed Hatcher the
police were there to investigate a sexual assault and believed Hatcher was a
possible suspect. Hatcher responded he “did not do anything.” Schnurer then
asked whether Hatcher had consensual sex with [T.T.], and Hatcher “stated,
no, she was way too drunk.” After refreshing his recollection using his report,
Schnurer testified Hatcher stated, “I never touched her, she was so drunk.”
Schnurer further testified he “gave [Hatcher] several opportunities to tell
[police] what had happened,” but Hatcher “still denied that he had any
sexual contact, consensual or not consensual, with [T.T.].”
¶ 60 In his postconviction motion, Hatcher asserted his trial attorney
was ineffective by failing to move to suppress Hatcher's statement, made
before he received Miranda warnings, that he did not have sexual contact
with [T.T.] because she was too drunk. Hatcher contended Miranda warnings
were required because that statement was the product of a custodial
interrogation.
¶ 61 At the postconviction hearing, Hatcher testified he was asleep in
[Ewald’s] apartment on the morning of July 3, 2010, when he was awoken
by officer Brian Arkens, who “called out” to him, “[H]ey buddy, get up, come
down and talk to me.” Hatcher was wearing only a pair of shorts. Arkens did
not allow Hatcher to get dressed or use the bathroom but did allow him to
put on shoes.
¶ 62 When Hatcher went downstairs, [Ewald] was in the living room.
Schnurer called Hatcher out onto the porch, frisked him, and told him to sit
down. Schnurer asked Hatcher “if [he] knew what was going on,” and
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Hatcher responded he did not know why the officers were there. Schnurer
then told Hatcher the police were investigating a sexual assault, and he was
“the suspect.” Schnurer asked Hatcher “if [he] knew what was going on
now,” and Hatcher “told him no.”
¶ 63 Hatcher testified he was on the porch for thirty to forty minutes,
during which time Schnurer never left his side. Schnurer “kept asking” if
Hatcher had sex with [T.T.]. Hatcher testified, “At first I denied it. And then
— I told him, I didn’t touch her, I was too drunk. Because I was intoxicated
myself.” Hatcher testified Schnurer was armed during the questioning but
never drew his weapon. Schnurer denied Hatcher’s request to use the
bathroom and also denied his request to get a cigarette from the kitchen,
which was located on the first floor of the residence.
¶ 64 Hatcher testified [T.T.] was in the upper floor of [Ewald’s]
residence while he was being questioned on the porch. When [T.T.] was
escorted from the residence, Schnurer “made [Hatcher] stand up, come down
the stairs, walked [him] to the neighbor's picket fence, [and] told [him] to
. . . stare at the wall and don't move.” Schnurer told Hatcher this was so he
could not look at [T.T.]. After a few minutes, Schnurer directed Hatcher
back to the porch. Schnurer again denied Hatcher’s request to use the
bathroom. Ten to twenty minutes after [T.T.] left, Hatcher was handcuffed
and transported to the police station. At the station, he was given Miranda
warnings before being questioned by another officer. Hatcher admitted to
that officer that he had sex with [T.T.]. He testified at the postconviction
hearing that he had denied having sex with [T.T.] when questioned by
Schnurer because [Ewald], his girlfriend, was standing “in earshot” in the
living room.
(Dkt. #18-2, ¶¶ 59-64.) Hatcher does not dispute any of these findings, which are
supported by the state court record and are presumed correct on federal habeas
review. 28 U.S.C. § 2254(e)(1); Woolley, 702 F.3d at 426-27.
The Wisconsin Court of Appeals also considered the testimony given by
defense counsel at the post-conviction hearing and his explanation for not filing a
motion to suppress:
¶ 65 Hatcher’s trial attorney testified at the postconviction hearing
that he never considered filing a motion to suppress Hatcher’s statement that
he did not have sex with [T.T.] because she was too drunk. Counsel stated
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he did not think Hatcher’s statement to that effect was “all that big of a
deal.” Counsel later clarified:
My recollection is that it wasn’t the sort of issue that . . .
warranted a suppression motion. Obviously, my common
practice is to look at all of those particular issues and determine
whether or not there is anything that is worthy of challenging
when it comes to Constitutional rights. And my recollection
would be that that — it didn’t rise to the level where I thought
a motion should be filed.
(Dkt. #18-2, ¶¶ 59-65.) Similarly, the circuit court found defense counsel’s testimony
credible (dkt. #18-5, at 14), and this finding -- which Hatcher does not attempt to refute
-- is also entitled to the “presumption of correctness” on federal habeas corpus review. 28
U.S.C. § 2254(e)(1).
After analyzing Hatcher’s claim under the factors relevant to a Miranda custody
analysis, the Wisconsin Court of Appeals further agreed with the circuit court’s finding
that petitioner was not “in custody” when the statement was made. (Dkt. #18-2, ¶ 68;
dkt. #18-5, at 29.) Specifically, applying these factors, the Wisconsin Court of Appeals
concluded that Hatcher failed to demonstrate that he was in custody when the statement
was made:
¶ 70 At first blush, the circumstances surrounding Schnurer’s
questioning of Hatcher appear to support Hatcher’s argument that he was in
custody. Hatcher was awoken from sleep to find a police officer (Arkens) in
the room.[] Hatcher was wearing only a pair of shorts, and Arkens did not
allow him to get dressed, other than putting on shoes, or use the bathroom.
Arkens directed Hatcher to go downstairs. Once downstairs, a second officer
(Schnurer), directed Hatcher onto the porch, where he frisked Hatcher and
told him to sit down. Schnurer then questioned Hatcher regarding the sexual
assault of [T.T.] for about thirty to forty minutes, during which time
Schnurer did not leave Hatcher’s side. While they were on the porch,
Schnurer denied Hatcher’s requests to use the bathroom and get a cigarette
from the kitchen. When [T.T.] was escorted out of the residence, Schnurer
directed Hatcher to walk toward a neighbor’s fence and stand facing it until
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[T.T.] had gone. After that, Schnurer directed Hatcher back to the porch and
again denied his request to use the restroom. On these facts, we question
whether a reasonable person in Hatcher’s position would have felt free to
terminate the interview and leave the scene. See Lonkoski, 346 Wis. 2d 523,
¶ 27, 828 N.W.2d 552. We find it particularly significant that, beyond
simply telling Hatcher where to go, Schnurer and Arkens repeatedly denied
Hatcher’s requests to do things like get dressed, use the bathroom, and get a
cigarette.
¶ 71 The problem with Hatcher’s argument regarding custody,
however, is that the operative inquiry is whether Hatcher was in custody at
the time he made the statement he now seeks to suppress — namely, that he did not
have sex with [T.T.] because she was too drunk. Thus, we may not consider
any evidence regarding events that are alleged to have occurred after Hatcher
made that statement. Unfortunately, the record is not clear as to when during
the questioning Hatcher made the challenged statement. Nevertheless, it is
apparent from Hatcher’s testimony at the postconviction hearing that he
made the statement before [T.T.] was escorted from the residence.
Accordingly, in determining whether Hatcher was in custody for Miranda
purposes, we may not consider evidence that Schnurer: directed Hatcher to
walk toward and stand facing a neighbor’s fence until [T.T.] had gone;
directed Hatcher back to the porch after [T.T.] left; and denied Hatcher’s
request to use the restroom once he was back on the porch.
¶ 72 It is also clear from Hatcher’s postconviction testimony and
Schnurer’s trial testimony that the following events occurred before Hatcher
made the challenged statement: Hatcher was awoken from sleep to find
Arkens, a police officer, in the room; Hatcher was wearing only shorts, and
Arkens refused to let him get dressed or use the bathroom; Arkens did allow
Hatcher to put on shoes; Arkens directed Hatcher downstairs; and, once
downstairs, Schnurer directed Hatcher onto the porch and frisked him.
Although it is a close case, on these facts alone, we cannot conclude Hatcher
was in custody.
¶ 73 That Hatcher was questioned soon after waking to find a police
officer in his room weighs in favor of custody because it shows Hatcher was
in a relatively vulnerable position. The same is true of the fact that Hatcher
was not fully dressed. In addition, Hatcher’s movements were controlled by
the officers, and Arkens refused to let him get dressed or use the bathroom.
These facts further weigh in favor of custody, as does the fact that Hatcher
was frisked when he stepped onto the porch. See Lonkoski, 346 Wis. 2d 523,
¶ 28, 828 N.W.2d 552.
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¶ 74 On the other hand, however, Hatcher was not handcuffed or
physically restrained in any manner. See id. Although the officers were armed,
they did not draw their weapons. See id. The questioning took place on the
porch of Hatcher’s girlfriend’s residence — a location familiar to Hatcher—
rather than in a police vehicle or at the police station. See id. The record
reflects that at least three officers were present at the residence, but Schnurer
appears to have been the only officer present when Hatcher made the
challenged statement. See id. The questioning on the porch lasted only thirty
to forty minutes, which is not particularly lengthy. See id., ¶ 31 (referring to
a thirty-minute interrogation as “relatively short”). We do not know precisely
when Hatcher made the challenged statement. However, the record strongly
suggests it was made near the beginning of the questioning. See supra, ¶¶ 59,
63. Further, while Hatcher was not specifically told he was free to leave, he
also was not specifically told he could not leave. All of these facts weigh
against a conclusion that Hatcher was in custody, and, in our opinion, are
sufficient to outweigh the facts supporting a contrary conclusion that are
discussed in the preceding paragraph. See supra, ¶ 73.
¶ 75 In addition to the above evidence, Hatcher testified at the
postconviction hearing that, while on the porch, he asked Schnurer for
permission to use the bathroom and go inside to get a cigarette, but Schnurer
denied those requests. These additional facts, when combined with the facts
discussed above at ¶ 72, would likely be enough to tip the balance in favor
of custody. However, we cannot discern from the record whether Hatcher’s
requests to use the bathroom and get a cigarette were made before or after
his statement that he did not have sex with [T.T.] because she was too
drunk.[]
(Dkt. #18-2, ¶¶ 70-76) (footnotes omitted, emphasis in original).
Because petitioner failed to meet his burden to establish that he was in custody at
the time he made the challenged statement, the Wisconsin Court of Appeals concluded
that he did not show his defense counsel was ineffective for failing to file a motion to
suppress. (Id. at ¶ 76.) Ineffective-assistance claims that are adjudicated on the merits in
state court, as in this case, are entitled to an added level of deference on federal habeas
corpus review under § 2254(d). “[B]ecause the Strickland standard is a general standard, a
state court has even more latitude to reasonably determine that a defendant has not
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satisfied that standard.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citing Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004)). As a result, this standard is “doubly deferential”
on federal habeas corpus review. Id; see also Richter, 562 U.S. at 105 (emphasizing that the
standards created by Strickland and § 2254(d) are “highly deferential,” and “‘doubly’ so”
when applied in tandem (citations omitted)).
As both the circuit court and the Wisconsin Court of Appeals found, Hatcher did
not come forward with sufficient evidence to find that he was in custody at the time he
denied having any sexual contact with T.T. because she was “so drunk.” To the contrary,
the available facts support the Wisconsin Court of Appeals’ conclusion that Hatcher made
the remark early on during Sergeant Schnurer’s initial efforts to question him and was not
made under circumstances that amounted to custodial interrogation. Thus, Hatcher has
not shown that his trial attorney was deficient for failing to file a meritless suppression
motion. See United States v. Nolan, 910 F.2d 1553, 1564 (7th Cir. 1990) (counsel was not
ineffective for failing to file a meritless motion to suppress); see also Rogers v. Wells, 96 F.4th
1006, 1015 (7th Cir. 2024) (“[o]bviously, an attorney is not constitutionally deficient for
failing to lodge a meritless objection”) (quoting Northern v. Boatwright, 594 F.3d 555, 561,
(7th Cir. 2010)). Therefore, the Wisconsin Court of Appeals reasonably concluded that
Hatcher was not entitled to relief for this reason.
Finally, respondent argues that petitioner failed to prove that he was prejudiced as
the result of his counsel’s performance because, even assuming that a motion to suppress
was filed and was successful, Hatcher’s statement to Sergeant Schnurer still would have
been admissible to impeach his testimony that T.T. was not too intoxicated to consent.
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(Tr. 2a (dkt. #18-19) 29:8-13, 33:4–39:7, 46:19–47:1.) See Harris v. New York, 401 U.S.
222, 226 (1971) (“The shield provided by Miranda cannot be perverted into a license to
use perjury by way of a defense, free from the risk of confrontation with prior inconsistent
utterances. We hold, therefore, that petitioner’s credibility was appropriately impeached
by use of his earlier conflicting statements.”); see also Michigan v. Henry, 494 U.S. 344, 351
(1990) (“We have never prevented use by the prosecution of relevant voluntary statements
by a defendant, particularly when the violations alleged by a defendant relate only to
procedural safeguards that are ‘not themselves rights protected by the Constitution,’” such
as the Miranda rights). In this case, the State did in fact use the statement in part to
impeach Hatcher’s testimony. (Tr. 2a (dkt. #18-19) 67:23-68:1, 69:13-20.) For this
additional reason, Hatcher fails to show that his counsel was ineffective. See Price v.
Washington, 54 F. Supp. 2d 837, 840 (N.D. Ill. 1999) (concluding that a habeas petitioner
failed to establish prejudice resulting from his attorney’s failure to file a suppression motion
where the statement would have been admissible for impeachment, even if the trial court
had suppressed it as an initial matter); see also Evans v. Davis, 875 F.3d 210, 218 (5th Cir.
2017) (“[T]here can be no reasonable probability of a different result if the evidence would
have come in anyway.”). Accordingly, Hatcher’s petition for a writ of habeas corpus under
28 U.S.C. § 2254(d) must be denied.
Under Rule 11 of the Rules Governing Section 2254 Cases, the court must issue or
deny a certificate of appealability when entering a final order adverse to a petitioner. To
obtain a certificate of appealability, the applicant must make a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Tennard v. Dretke, 542 U.S. 274,
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282 (2004). This means that “reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Miller El v. Cockrell,
537 U.S. 322, 336 (2003) (internal quotations and citations omitted). The petitioner has
not made a showing, substantial or otherwise, that his conviction was obtained in violation
of clearly established federal law as decided by the United States Supreme Court. Because
no reasonable jurist would debate whether the petition should have been resolved
differently, the court will not issue petitioner a certificate of appealability.
ORDER
IT IS ORDERED that:
1. The habeas corpus petition filed by Mychael R. Hatcher (dkt. #14) is DENIED
and this action is DISMISSED WITH PREJUDICE.
2. A certificate of appealability is DENIED.
Entered on this 4th day of March, 2026.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge
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