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Arredondo v. Huibregtse

September 8, 2008

DAVID ARREDONDO, PETITIONER-APPELLANT,
v.
PETER HUIBREGTSE, WARDEN, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 05-C-559-Lynn Adelman, Judge.

The opinion of the court was delivered by: Ripple, Circuit Judge.

ARGUED MAY 28, 2008

Before EASTERBROOK, Chief Judge, and RIPPLE and WOOD, Circuit Judges.

David Arredondo was convicted by a Wisconsin jury of first-degree intentional homicide and second-degree sexual assault. The Wisconsin trial court sentenced him to life without the possibility of parole on the homicide charge and twenty years' consecutive imprisonment on the sexual assault charge. After exhausting his direct and collateral remedies in state court, Mr. Arredondo filed in the district court a petition for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied his petition. Mr. Arredondo timely filed a notice of appeal and obtained a certificate of appealability.

For the reasons set forth in this opinion, we affirm the judgment of the district court.

I. BACKGROUND

A.

On May 8, 1997, Desiree Klamann's naked body was found wrapped in a comforter in a garbage dumpster. Klamann was last seen alive, in the company of Mr. Arredondo, on May 4, 1997. The police discovered Mr. Arredondo's semen on the comforter. The police searched the apartment of Thomas Garza, where Mr. Arredondo had stayed with some frequency. They discovered that someone recently had painted the lower half of the walls of Mr. Arredondo's bedroom, but the police nevertheless discovered blood, later determined to be Klamann's, on one of the moldings.

Thereafter, Mr. Arredondo was charged with the murder and sexual assault of Klamann, and he pleaded not guilty. At trial, the State called several witnesses, including Thomas Garza. Garza testified that, on May 4, 1997, he returned to his apartment at 9:30 or 9:45 p.m. While Garza was in the kitchen, he observed Mr. Arredondo run naked from his bedroom to the bathroom.

Garza asked Mr. Arredondo what was going on, and Mr. Arredondo responded that he had to go to the bathroom and could not wait. Afterwards, both Mr. Arredondo and Garza went to their respective bedrooms. Garza was watching television, and he fell asleep. He testified that he heard a woman's voice while he was sleeping, but he could not be sure whether the voice had come from Mr. Arredondo's bedroom because the television had remained on.

The State also called as a witness Kurt Moederndorfer, Mr. Arredondo's former cellmate at the Milwaukee County Jail. Moederndorfer testified that Mr. Arredondo had told him about the Klamann murder. According to Moederndorfer, Mr. Arredondo met a woman at the Cinco de Mayo festival, and she and Mr. Arredondo spent the day drinking together. Moederndorfer testified that Mr. Arredondo had told him that he had convinced the woman to go home with him, took her into his bedroom and made sexual advances toward her. When the woman resisted, Mr. Arredondo told Moederndorfer that he (Mr. Arredondo) had grabbed her by the throat, choked her and forced her to have sexual intercourse with him. Moederndorfer testified that he had asked Mr. Arredondo whether the police had any evidence of the crime, and Mr. Arredondo replied that he had painted the walls and disposed of the mattress and an old rug in a dumpster.

After the State rested, the trial court excused the jury and engaged in the following colloquy with Mr. Arredondo and his counsel regarding whether Mr. Arredondo would testify. We set forth that colloquy in its entirety because it is so central to our decision:

THE COURT: . . . . It is my understanding the defense has two very brief witnesses to present before lunch and then the defendant will at that time make a decision about testifying. Is that right?*fn1

MR. SCHATZ: That's correct.

THE COURT: Has any preliminary decision been made in that regard?*fn2

MR. WILLIAMS: Let's make the record before lunch if we can.

THE COURT: I'd like to so we know what we're doing over the lunch break, so the decision should be made before the lunch break. It is my under-standing the defendant has elected not to testify although wants [sic]to reserve the right to change after these two witnesses testify. Is that right?

MR. SCHATZ: The defendant's elected not to testify, Your Honor.

THE COURT: And that's a definite decision?

MR. SCHATZ: That's a definite decision. I would say 99% definite. I don't expect anything from these two witnesses that would change his mind, but you never know.

THE COURT: We can address it again after the witnesses testify, but let me confirm with you, Mr. Schatz, that you have discussed the defendant's options with him in that regard.

MR. SCHATZ: I have, Your Honor.

R.15 at 2-3. The court then questioned Mr. Arredondo as follows:

THE COURT: And Mr. Arredondo, I need to con-firm with you that you have discussed your decision regarding testifying in this case with your counsel and the options that you have in that regard. You have done so?

DEFENDANT: Yes, Your Honor.

THE COURT: You understand that you have an absolute constitutional right not to testify in this case and if you decide, as evidently you have decided, not to testify in this case, the jury will be instructed that they cannot hold that against you. They cannot draw any conclusions from that. Do you understand?

DEFENDANT: Yes, Your Honor.

THE COURT: Do you also understand, Mr. Arredondo, that you have a corresponding right to testify and take the witness stand in your own defense. If you do that, you would be subjecting yourself to cross-examination. Do you recognize that as well?

DEFENDANT: Yes, Your Honor.

THE COURT: Knowing that you have these corresponding rights and how they apply here and in consultation with your counsel, you have made the decision not to testify in this case, correct?

DEFENDANT: Yes, Your Honor.

THE COURT: And although that decision has been made in consultation with your counsel, it is nonetheless, your own decision; is that correct?

DEFENDANT: Yes, Your Honor.

THE COURT: All right. Let's proceed.

R.15 at 3-4.

Mr. Arredondo then presented two witnesses after which the defense rested. The court made no further inquiry regarding whether Mr. Arredondo would testify. The prosecutor indicated that the State would not present rebuttal testimony. The court then advised the jury that the evidentiary phase of the trial was complete and recessed for lunch. Immediately after lunch, however, Mr. Arredondo advised the court that he wished to testify:

THE COURT: All right. The record should reflect we are now back on the record. . . .

DEFENDANT: Your Honor, excuse me, Your

Honor. I did not understand very well about when you were asking me the questions. My attorney advised me to say yes, but I didn't understand the question that I was yes-ing to when we ended about an hour or two hours ago.

THE COURT: You're changing your mind about your decision to testify?

DEFENDANT: Yes, ma'am.

DEFENDANT: Yes, I did not understand. When you were asking me about the rights or whatever about testifying-

THE COURT: Right.

DEFENDANT: I did not understand. And I need to take that back, the yes answer that I gave you and tell you no, I do need to testify because the only one that can defend David A rredondo today is D avid Arredondo.

THE COURT: Have you talked to your attorney about this?

DEFENDANT: I told him and he said no, I could not, but we had an argument earlier this afternoon when I was telling him about it, and he said he didn't give a shit what I did at this point, and I took it as he was not letting me understand what he was coming from.

THE COURT: All right. Mr. Schatz.

MR. SCHATZ: Your Honor, that's entirely false.

Since the end of court and, of course, I can't discuss whatever Mr. Arredondo and I discussed in confidence. We have discussed quite a bit about whether he would take the stand and testify or not. I told him what the ramifications would be. We discussed it quite a bit this morning in closed quarters even during the trial. All I can say is Mr. Arredondo made the decision not to testify. I concur in that decision-

DEFENDANT: With his help, Your Honor. He told me you're not testifying and I was confused. I did not know- I did not understand, ma'am.

THE COURT: I don't want to get involved or in the middle of a dispute between attorney and client, but I need to make a record of what has transpired. Evidently you have changed your mind at this point in your decision not to testify in this case. Evidently that's also against advice of counsel apparently, and I don't know if the state has a position on that.

MR. WILLIAMS: They ...


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