Promotor v. Pollard
2010 U.S. App. LEXIS 25417
| 7th Cir. | 2010Background
- Promotor killed four and injured two in a high-speed drunken crash; he pled no contest to homicide and injury by intoxicated use of a vehicle.
- Before sentencing, Promotor participated in a defense pre-sentence report claiming 23 beers were consumed; the court referenced this figure during sentencing.
- Promotor moved for post-conviction relief claiming sentencing relied on inaccurate information; Wisconsin courts denied relief.
- Promotor argued ineffective assistance of counsel; the district court found procedural default and denied COA on those claims.
- This federal habeas petition argued due process was violated by sentencing based on inaccurate information; the district court and appellate court ruled on default and merits.
- The Seventh Circuit affirmed, concluding default barred review and the court did not rely on the inaccurate information.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the due process claim is procedurally defaulted | Promotor contends waiver was not firmly established and should be excused. | Pollard argues Wisconsin waiver rule was an adequate, independent ground and properly applied. | Yes, waived; adequate and independent ground forecloses review. |
| Whether the cause-and-prejudice exception excuses the default | Promotor claims language barrier or ineffective assistance constitutes cause. | Promotor failed to show external impediment or prejudice; illiteracy isn’t cause. | No, cause and prejudice not shown; default remains. |
| Whether the due process claim would prevail on the merits if not defaulted | Promotor asserts sentencing relied on materially inaccurate information. | Court did not rely on the 23-beer figure; sentencing was based on other factors. | No, court did not rely on the inaccurate information; due process claim fails on the merits. |
| Whether the ineffective assistance of counsel claim can be raised via COA expansion | Promotor seeks expansion of COA to include ineffective assistance arguments. | Default bars expansion absent cause and prejudice. | No expansion; COA properly denied due to default. |
Key Cases Cited
- Townsend v. Burke, 334 U.S. 736 (U.S. 1948) (due process right to sentencing on accurate information)
- United States v. Tucker, 404 U.S. 443 (U.S. 1972) (standard for when sentencing based on information)
- Ben-Yisrayl v. Buss, 540 F.3d 542 (7th Cir. 2008) (due process right to accurate sentencing information)
- Lechner v. Frank, 341 F.3d 635 (7th Cir. 2003) (materiality of information in sentencing)
- Smith v. McKee, 598 F.3d 374 (7th Cir. 2010) (standard for procedural default in habeas petitions)
- Dretke v. Haley, 541 U.S. 386 (U.S. 2004) (cause and prejudice exception for defaulted claims)
- Miranda v. Leibach, 394 F.3d 984 (7th Cir. 2005) (pleading standards for federal review of state decisions)
- Ward v. Jenkins, 613 F.3d 692 (7th Cir. 2010) (adequacy of independent state grounds in habeas review)
- United States v. Montoya, 891 F.2d 1273 (7th Cir. 1989) (Habeas review considerations in the court's reasoning)