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Irving v. Pollard

United States District Court, E.D. Wisconsin

May 31, 2016

ANTHONY IRVING, Petitioner,
v.
WILLIAM POLLARD, Respondent.

          ORDER

          J.P. Stadtmueller U.S. District Judge

         On January 6, 2016, Anthony Irving filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting that his state court conviction and sentence were imposed in violation of the Constitution. After a jury trial in Sheboygan County Circuit Court, Mr. Irving was convicted of armed robbery with threat of force, a violation of Wis.Stat. § 943.32(1)(B). (Docket #1 at 2). Irving was sentenced to eighteen (18) years of confinement and eighteen (18) years of extended supervision. (Docket #1 at 2). Irving is currently confined to the Waupun Correctional Institution in Waupun, Wisconsin.

         On March 7, 2016, the Court screened Mr. Irving’s petition pursuant to Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts. (Docket #8). In light of the Court’s conclusion that Mr. Irving’s petition was likely time-barred, the Court ordered the state to file a motion to dismiss or file a letter advising the Court of its waiver of the statute of limitations defense. (Docket #8). The government has since filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) which argues that Mr. Irving’s claims are not only time barred, but also procedurally defaulted and meritless. (Docket #11). The government’s motion is now fully briefed and ripe for adjudication. (Docket #11, #12, #13, #15). For the reasons stated herein, the Court agrees with the government that Mr. Irving’s claims are both untimely and procedurally defaulted and, accordingly, his petition must be dismissed.

         1.BACKGROUND

         Before addressing the parties’ arguments with respect to the pending motion to dismiss, the Court will first provide an overview of relevant procedural facts.

         On May 27, 2010, Mr. Irving was convicted of six counts of armed robbery with threat of force following a jury trial in Sheboygan County Circuit Court. (Docket #1, #12, Ex. 1). During the trial, a state public defender, Attorney Brian Van Ells, represented Mr. Irving. (Docket #1 at 6). In his petition, Mr. Irving claims that prior to trial, he told Mr. Van Ells that he had committed the crimes in question. (Docket #1 at 6). Further, Mr. Irving claims that Mr. Van Ells aided and/or encouraged Mr. Irving to commit perjury during the trial by lying about his innocence. (Docket #1 at 6).

         After the trial, Mr. Irving pursued a direct appeal with the assistance of an attorney, Byron Lichstein. (Docket #1 at 7). In that direct appeal, Mr. Irving raised two claims: (1) a denial of the right to self-representation; and (2) an ineffective assistance of trial counsel for failing to conduct certain cross-examinations. (Docket #12, Ex. 5).

         During the direct appeal process, Mr. Lichstein allegedly received assistance from two law students Katherine Rallin and Jennifer Cunha. (Docket #1 at 7; #13). Mr. Irving claims that sometime during the appeals process, Mr. Van Ells told Mr. Lichstein about Mr. Irving’s confession. (Docket #1 at 7; #13). In response, Mr. Irving claims that Ms. Rallin and Ms. Cunha called him between December 9, 2010, and April 7, 2011, during which time they asked Mr. Irving if he confessed to having committed his crimes to Mr. Van Ells. (Docket #1 at 7). Mr. Irving apparently denied making the confession, which he claims was a decision that he made to protect Mr. Van Ells. (Docket #1 at 7).

         The Wisconsin Court of Appeals ultimately affirmed Mr. Irving’s judgment of conviction on August 8, 2012. (Docket #12, Ex. 5). Thereafter, Mr. Irving filed a petition for review with the Wisconsin Supreme Court; however, the court denied that petition for review on December 10, 2012. (Docket #12, Exs. 6-7).

         Mr. Irving did not actively litigate his case thereafter until August of 2015. However, Mr. Irving has informed the Court that, in February of 2013, he became aware that his legal papers and trial transcripts were missing. (Docket #1 at 8).

         In August of 2015, Mr. Irving filed a state post-conviction motion pursuant to Wis.Stat. § 974.06. (Docket #1, Ex. 1 at 1). In that motion, Mr. Irving asserted “that the performance of his trial counsel was deficient and that his appellate counsel failed to properly argue his trial counsel’s ineffectiveness in his subsequent appeal.” (Docket #1, Ex. 1 at 2).

         The Sheboygan County Circuit Court concluded that Mr. Irving’s motion was improper pursuant to Wis.Stat. § 974.06. That statute provides:

[a]ll grounds for relief available to a person under this section must be raised in his or her original, supplemental or amended motion. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the reason has taken to secure relief may not be the basis for a subsequent motion, unless the court finds a ground for relief asserted which ...

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