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Rogelio Promotor v. Williampollard

December 14, 2010

ROGELIO PROMOTOR, PETITIONER-APPELLANT,
v.
WILLIAMPOLLARD, WARDEN, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:07-CV-00363-J.P. Stadtmueller, Judge.

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

Green Bay Correctional Institution,

ARGUED NOVEMBER 12, 2009

Before CUDAHY, MANION, and WILLIAMS,Circuit Judges.

On April 8, 2003, Rogelio Promotor got drunk, drove at speeds up to 86 miles per hour, tore through two red lights, and crashed into a passing car. He killed four people and severely injured two others. He pleaded no contest in Wisconsin state court to four counts of homicide by intoxicated use of a motor vehicle and two counts of causing injury by intoxicated use of a motor vehicle.

Before sentencing, Promotor cooperated in the creation of a defense pre-sentence investigation report which stated that Promotor consumed up to 23 beers in the hours preceding the crash. The court mentioned the "23 beers" figure twice when it sentenced Promotor to 66 years of imprisonment and 28 years of supervised release.

Promotor filed post-conviction requests for relief with the Wisconsin state courts, which were denied. He then filed a petition for a writ of habeas corpus in federal court. He asserted that his due process rights were violated because he was sentenced based on inaccurate information-the 23 beers figure from the defense presentence report. He also argued that he received ineffective assistance of counsel. The district court denied the petition, finding that Promotor procedurally defaulted his due process claim by not objecting to the information in his pre-sentence report. Promotor requested, and the district court granted, a Certificate of Appealability on this question, and on whether the Wisconsin state courts violated Promotor's due process rights by sentencing him based on inaccurate information.

We agree with the district court that Promotor procedurally defaulted his challenge to the allegedly inaccurate information in the pre-sentence report because he failed to object to it. There is no valid cause that excuses this default. And even if he had not defaulted his claim, Promotor did not demonstrate that the trial court relied on materially incorrect information in his sentencing.

Promotor also requested a Certificate of Appealability on his ineffective assistance of counsel arguments. The district court denied this request, finding that Promotor procedurally defaulted his claim by failing to fully and fairly present it to the Wisconsin Supreme Court. Promotor asks that we expand his Certificate of Appealability to address these arguments. Because we agree with the district court that Promotor procedurally defaulted his ineffective assistance of counsel claim, we decline to expand the Certificate of Appealability.

We affirm the district court's decision.

I. BACKGROUND

On April 8, 2003, after drinking with his friends, 19-year-old Rogelio Promotor decided to drive. He sped through a residential area and drove through a red light. Witnesses described him as "careening" and "swerving" down the street, and an accident reconstruction later estimated his speed at between 77-86 miles per hour. He drove through a second red light and crashed into another passing car. Travis Cates, Antonio Mazaba, Michael Popp, and Troy Vanderhei were killed. Shaun Foerster and Laura Lewis were severely injured.

Promotor does not remember driving or the subsequent collision. Approximately two hours and forty minutes after the crash, his blood alcohol concentration was measured at .161 g/dL. He pleaded no contest in Wisconsin state court to four counts of homicide by intoxicated use of a motor vehicle and two counts of causing great bodily harm by intoxicated use of a motor vehicle.

Before sentencing, Promotor participated in the creation of an "Alternative Presentence Investigative Report" ("Alternative Report"). The report was prepared by a "Sentencing & Disposition Specialist" at the request of Promotor's attorney. The Specialist used a Spanish-language interpreter during his interviews with Promotor. The report was designed to supplement information provided in the Department of Corrections ("DOC") Pre-sentence Report, and to offer a more detailed picture of Promotor, his background, and experiences. The Alternative Report described Promotor's upbringing, including the fact that he started working while in grade school and dropped out in the sixth grade so he could earn more money and help support his family. Promotor indicated that he is literate in Spanish, but not in English. The report continued by describing some of Promotor's personal relationships, including his interactions with his alcoholic father. His father was a chronic binge drinker who was often physically abusive to Promotor. The report also described Promotor's own problems with alcohol. Although he generally limited his drinking to the weekends, he also drank alcohol secretly at work. His mother was concerned about Promotor's drinking, and lectured him on several occasions. His girlfriend asked him to stop drinking entirely. His usual habit was to drink up to 12-15 cans of beer with friends, and, the report stated that on at least one occasion, Promotor consumed a case of beer by himself, which made him sick.

Under a section entitled, "Client's Version of Offense and Surrounding Circumstances," the Alternative Report detailed Promotor's alcohol consumption on the day of the collision. He first had 15-16 cans of beer from a case of 24. When that case was finished, one of Promotor's friends bought a second one, and Promotor had another six beers. Promotor recalled starting to drink one more beer from a third 24-case but did not remember anything after that. Added together, the Alternative Report describes Promotor drinking 22-23 cans of beer on the day of the fatal crash.

Promotor's sentencing hearing was lengthy, and a Spanish-language interpreter was present the entire time. First the surviving victims spoke. Next to speak were the families of the victims who were killed. Videos and letters were also submitted on behalf of the victims' friends and families. Both the Alternative and DOC sentencing reports were then presented. The court had previously reviewed each report and found typographical errors and other small mistakes. It suggested corrections, and for each revision, asked the prosecutor and Promotor's attorney if there was any objection to the proposed change. The court asked defense counsel if he had "any other additions, deletions, or revisions to the defense PSI". Defense counsel answered, "No, your Honor." In reviewing ...


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