Elam, Joseph v. Douma, Timothy, 3:13-cv-00880

Late-night crash: Elam was found injured beside a black truck that had left the road; the truck belonged to his employer and contained keys identified as Elam’s.
Pre-arrest statement: Before receiving Miranda warnings, Elam told officers he had not been driving and had been hiking.
Trial evidence contradicted that statement: multiple witnesses (bar manager, patrons, oncoming driver, homeowner) testified they saw Elam or only one occupant; blood test and field sobriety indicated intoxication; a recorded call showed Elam saying his girlfriend saying she was driving “would help.”
Trial incident: While cross-examining Elam’s girlfriend (who claimed she had been the driver), the judge told her, in front of the jury, she had the right to remain silent to avoid self-incrimination, then instructed jurors not to draw credibility inferences.
Procedural history: Jury convicted Elam of OWI (fifth-or-subsequent) and driving after revocation; sentence enhanced under habitual-offender law. Elam appealed claiming ineffective assistance for (1) failure to move to suppress pre‑Miranda statements and (2) failure to move for a mistrial based on the judge’s comment; the Wisconsin Court of Appeals affirmed, finding no prejudice because the evidence was overwhelming. Elam’s petition for review to the Wisconsin Supreme Court was denied.

Issue	Plaintiff's Argument (Elam)	Defendant's Argument (Douma)	Held
Counsel failed to move to suppress Elam’s pre‑Miranda statements	Elam: counsel was ineffective for not suppressing an un‑warned statement that conflicted with his trial theory	Douma: even if counsel erred, the un‑warned statement was cumulative to overwhelming evidence	Court: No habeas relief; state court reasonably found no prejudice under Strickland because evidence against Elam was overwhelming
Counsel failed to move for mistrial after judge told witness she could remain silent	Elam: counsel should have sought mistrial because the judge’s comment suggested witness might be lying and harmed credibility	Douma: judge immediately corrected and instructed jurors; any error did not affect outcome given other evidence	Court: No habeas relief; state court reasonably concluded any error was not prejudicial

Strickland v. Washington, 466 U.S. 668 (ineffective assistance two‑part test: deficiency and prejudice)
State v. Swinson, 261 Wis. 2d 633 (2003) (Wisconsin appellate application of Strickland standard)
Kafo v. United States, 467 F.3d 1063 (7th Cir. 2006) (pleading requirements for habeas claims)
Perruquet v. Briley, 390 F.3d 505 (7th Cir. 2004) (habeas petition must state facts suggesting constitutional violation)
Lloyd v. Van Natta, 296 F.3d 630 (7th Cir. 2002) (pleading standard not one of particularity but must allege facts)
Miller‑El v. Cockrell, 537 U.S. 322 (certificate of appealability standard: reasonable jurists could debate outcome)
Tennard v. Dretke, 542 U.S. 274 (certificate of appealability requires substantial showing of denial of a constitutional right)