United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
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
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.
addressing the parties’ arguments with respect to the
pending motion to dismiss, the Court will first provide an
overview of relevant procedural facts.
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
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).
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).
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).
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).
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).
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 ...