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Scott v. Hepp

United States District Court, W.D. Wisconsin

May 9, 2016

MATTHEW G. SCOTT, Petitioner,
v.
RANDALL HEPP, Respondent.

OPINION & ORDER

JAMES D. PETERSON District Judge

Pro se petitioner Matthew G. Scott is a prisoner in the custody of the Wisconsin Department of Corrections housed at the Fox Lake Correctional Institution. Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 2009 conviction out of the Circuit Court for Waukesha County, Wisconsin. Petitioner has paid the $5 filing fee, and so the next step is for me to preliminarily review the petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, I must dismiss the petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” When screening a pro se litigant’s petition, I must read the allegations generously. Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). After reviewing the petition with this principle in mind, I conclude that the petition includes at least one claim for which petitioner has not exhausted his state court remedies. I will direct petitioner to indicate and show good cause in support of how he wishes to proceed.

ALLEGATIONS OF FACT

I draw the following facts from the petition and from publicly-available case records.

On May 12, 2009, petitioner pleaded guilty to second degree sexual assault of a child. The Circuit Court for Waukesha County sentenced petitioner to eight years and six months on July 7, 2009. Petitioner filed a postconviction motion to withdraw his guilty plea and a motion for resentencing; the circuit court denied both motions on January 22, 2010. Dkt. 1-1.

Petitioner appealed the conviction and the order denying his motion to withdraw his guilty plea. Petitioner argued that he should have received an evidentiary hearing with respect to his motion to withdraw his guilty plea because he made a prima facie showing that the circuit court judge did not confirm that petitioner understood the essential elements of the crime before accepting his guilty plea. On June 8, 2011, the Wisconsin Court of Appeals affirmed the conviction but reversed and remanded the circuit court’s order denying petitioner’s motion to withdraw his guilty plea. The court of appeals determined that the circuit court should have held an evidentiary hearing on the motion; the court affirmed the judgment of conviction “because plea withdrawal must be determined in a postconviction evidentiary hearing.” Dkt. 1-2, at 2.

On remand, the circuit court held an evidentiary hearing and then denied petitioner’s motion to withdraw his guilty plea. Petitioner appealed. The court of appeals affirmed on April 10, 2013. State v. Scott, 2013 WI App. 73, ¶ 1, 348 Wis.2d 263, 831 N.W.2d 824.

Petitioner filed a petition for review with the Wisconsin Supreme Court on May 10, 2013, contending that the circuit court should have allowed him to withdraw his guilty plea because it was not knowing, voluntary, and intelligent. The supreme court denied the petition on January 13, 2014. Petitioner did not file a petition for a writ of certiorari to the United States Supreme Court.

But petitioner did file a petition for a writ of certiorari to the United States Supreme Court with respect to the first court of appeals decision (the decision entered June 8, 2011). Petitioner appears to have filed the petition on April 14, 2014; the Court denied the petition on May 27, 2014. Scott v. Wisconsin, 134 S.Ct. 2679 (2014).

It does not appear that the petitioner has filed any petitions for postconviction relief pursuant to Wis.Stat. § 974.06.

Now petitioner seeks a writ of habeas corpus based on two claims: (1) his trial attorney did not inform the circuit court judge that petitioner had problems understanding the plea colloquy, and so petitioner’s plea was not knowing and voluntary; and (2) ineffective assistance of postconviction and appellate counsel for failing to obtain postconviction or appellate relief and for failing to raise a claim for ineffective assistance of trial counsel.

ANALYSIS

Before I can consider the merits of petitioner’s claims, he must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). Exhaustion requires a habeas petitioner to fully and fairly present his claims to the state courts so that they have a meaningful opportunity to consider the substance of those claims and to correct any mistakes. Bolton v. Akpore, 730 F.3d 685, 694 (7th Cir. 2013). To “fairly present” a federal claim, a habeas petitioner must “assert that claim throughout at least one complete round of state-court review, whether on direct appeal of his conviction or in postconviction proceedings.” Richardson v. Lemke, 745 F.3d 258, 268 (7th Cir.), cert. denied sub nom., Richardson v. Pfister, 135 S.Ct. 380 (2014). This “requirement means that the petitioner must raise the issue at each and every level in the state court system, including levels at which review is discretionary rather than mandatory.” Id. A habeas petitioner who misses an opportunity to properly present a claim in state court commits a procedural default that may forfeit federal review of that claim. Curtis v. Montgomery, 552 F.3d 578, 582 (7th Cir. 2009) (citing Lieberman v. Thomas, 505 F.3d 665, 669 (7th Cir. 2007)); see also Guest v. McCann, 474 F.3d 926, 930 (7th Cir. 2007) (“If a habeas petitioner has not exhausted a claim, and complete exhaustion is no longer available, the claim is procedurally defaulted.”).

It appears that petitioner has exhausted his claim that his guilty plea was not knowing and voluntary. But to the extent that petitioner’s first claim also raises an ineffective assistance of trial counsel claim, he has not exhausted it. Nor has he exhausted his claim for ineffective assistance of postconviction and appellate counsel. Petitioner has not presented any ineffective assistance of counsel claim to any state court. “[T]he exhaustion doctrine . . . generally requires that a claim of ineffective assistance be presented to the state courts as an independent claim[.]” Murray v. Carrier, 477 U.S. 478, 488-89 (1986). In Wisconsin, “claims of ineffective assistance of appellate counsel must be filed in the form of a petition for a writ of habeas corpus with the court of appeals.” State v. Starks, 2013 WI 69, ¶ 4, 349 Wis.2d 274, 833 N.W.2d 146 (citing State v. Knight, 168 Wis.2d 509, 484 N.W.2d 540, 544 (1992)). And petitioner may be able to present an ineffective assistance of trial or postconviction counsel claim via a motion for postconviction relief pursuant to Wis.Stat. § 974.06. See State v. Balliette, 2011 WI 79, ¶ 31, 336 Wis.2d 358, 805 N.W.2d 334 (“When, however, the conduct alleged to be ineffective is postconviction counsel’s failure to highlight some deficiency of trial ...


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