United States District Court, W.D. Wisconsin
MICHAEL C. O’BRIEN, Petitioner,
LIZZIE TEGELS, Warden, Jackson Correctional Institution, Respondent.
OPINION & ORDER
STEPHEN L. CROCKER MAGISTRATE JUDGE.
Petitioner Michael C. O’Brien is incarcerated by the Wisconsin Department of Corrections at the Jackson Correctional Institution. O’Brien seeks a writ of habeas corpus under 28 U.S.C. § 2254 to challenge a state judgment of conviction from the Outagamie County Circuit Court. On April 5, 2016, both parties consented to magistrate judge jurisdiction and this case was reassigned to me the same day. (Dkt. 27.) The respondent has filed an answer and both parties have submitted briefing. After the briefing was complete, O’Brien also filed a Motion for the Appointment of Counsel. (Dkt. 22.) Because the record establishes that O’Brien is not entitled to the relief sought, his petition and motion must both be denied.
On July 1, 2010, O’Brien entered pleas of no contest to, and was found guilty of, an assortment of offenses outlined in Outagamie County Case Nos. 09CF384, 09CF745, and 10CF83 (hereafter referred to by the last 2 or 3 digits of each case number). In Case 384, O’Brien was convicted of: (1) possession of an electric weapon; (2) possession of cocaine; (3) resisting or obstructing an officer; and (4) misdemeanor bail jumping (four counts). In Case 745, O’Brien was convicted of felony bail jumping. In Case 83, O’Brien was convicted of operating while under the influence, 5th or 6th offense. Thereafter, O’Brien’s attorney sought and was granted leave to withdraw, followed by O’Brien’s attempt, through his second attorney, to withdraw his guilty pleas. Here is the Wisconsin Court of Appeals’ summary of the timeline:
O’Brien submitted a signed plea questionnaire/waiver of rights form and the court engaged him in a colloquy regarding his desire to plea to the charges. Ultimately, O’Brien pled no contest to all charges except operating with a prohibited alcohol concentration, and the court found him guilty. The court then ordered a presentence investigation (PSI) report. O’Brien advised the court that he was familiar with PSI reports, and he had previously been the subject of a PSI report.
At the scheduled sentencing hearing, O’Brien’s trial counsel successfully moved to withdraw, citing a conflict based on the PSI report. The court appointed O’Brien successor counsel, who ultimately moved to withdraw O’Brien’s pleas.
State v. O’Brien, 2013 WI.App. 30, ¶¶ 3-4, 346 Wis.2d 281, 827 N.W.2d 930.
At the plea withdrawal hearing, O’Brien submitted a letter from his former trial counsel, Dawn Leemon, in which she stated:
I have received and read the PSI report, and am extremely disturbed at some of its contents. I am utterly at a loss to understand why you would fail to tell me that you have prior federal charges stemming from an alcohol related accident where two people were killed. That is information that an attorney must have if she is to advise you appropriately, and the advice I gave you would have been different had I been aware of that conviction.
(Dkt. 9-2, at 14.)
O’Brien explained in his testimony that he knew about his prior record, he assumed that Leemon also knew everything in his criminal record, and that when he met with her, she had told him that his record did not look bad. (Hrg. Tr., dkt. #11, at 7-9.) Leemon did not testify at the plea withdrawal hearing because O’Brien’s new lawyer could not find her. (Id. at 11.) O’Brien asserted that, as a result of Leemon’s statements and her subsequent withdrawal from his case, O’Brien wanted advice about whether he should go to trial. (Id.)
The circuit court denied O’Brien’s request to withdraw his guilty pleas. The court, noted first that the pleas were voluntary and that O’Brien was fully aware that the court was the ultimate decision-maker of the appropriate sentence, regardless of the State’s request or the PSI’s recommendations. The court went on to reject the notion that Leemon’s ignorance of his entire criminal record warranted withdrawal of the pleas:
Mr. O’Brien knew perfectly well what his prior record was. He knew perfectly well that he had spent 41 months of a Federal prison sentence back in 1999 for homicide by negligent use of a motor vehicle. He knew his entire record, and he can’t come into court now and after he’s seen the presentence report recommendation and pull the rug out beneath those pleas. That does prejudice the State. It would be a serious waste of judicial resources because this defendant is not entitled to a trial. He has waived that entirely. He waived It knowing full well what the results might be regardless of what his attorney may have felt about the fact that she was not apprised by him of his prior record.
It is clear from the case law, Leitner in particular, that holding that a conviction will not show up in a presentence report and then having it show up is not a fair and just reason. Clearly from our case law an unfavorable recommendation in a presentence report is not a fair and just reason. Furthermore, the Court is entitled to consider the fact that the defendant waited until he saw a presentence report to ask to withdraw his pleas. There are no grounds here today. The defendant has not met his burden of proof to show that there is a fair and just reason to withdraw his pleas.
Id. (dkt. 11) at 18.
On direct appeal, O’Brien argued that the circuit court should have allowed him to withdraw his pleas of no contest in Cases 384, 745 and 83, because O’Brien had filed his motion before sentence was imposed and because Attorney Leemon had given inadequate advice ...