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Hurley v. Smith

United States District Court, E.D. Wisconsin

June 8, 2016

JOEL M. HURLEY, Petitioner,
v.
JUDY P. SMITH, Respondent.

          ORDER SCREENING §2254 HABEAS CORPUS PETITION (DKT. NO. 1), AND ORDERING THE RESPONDENT TO ANSWER OR OTHERWISE RESPOND

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         Joel M. Hurley, who is represented by counsel, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. Dkt. No. 1. He has paid the $5.00 filing fee. The case is now before the court for screening pursuant to Rule 4 of the Rules Governing §2254 Proceedings.

         I. BACKGROUND

         The petitioner was charged in the Marinette County Circuit Court of one count of first degree sexual assault of a child, in violation of Wis.Stat. §948.02(1)(b). Dkt. No. 1 at 15. Before the petitioner appeared on that charge, the state filed an amended complaint, charging him with one count of repeated sexual assault of the same child, in violation of Wis.Stat. §948.025. Id. at 15-16; Dkt. No. 1-3, at 1-3. That complaint did not allege specific dates for the assaults. Dkt. No. 1 at 16. At the preliminary hearing, the state called one witness (aged 16), who identified the petitioner as the person who had assaulted her when she was in elementary school; she testified that she did not recall exactly how many times this occurred. Id. at 16.

         At arraignment, the petitioner’s lawyer entered a not guilty plea, “raising all jurisdictional objections and sufficiency of the information.” Id. This was the only mention of a possible question as to the sufficiency of the complaint. Id.

         Before trial, the state asked the court to admit evidence of sexual contact between the petitioner and his sister when they were children; the sister testified that some fourteen to sixteen years earlier, the siblings had had sexual contact. Id. at 17. The petitioner’s lawyer objected to admission of the evidence; the trial court allowed it as evidence of opportunity. The sister testified at trial, adding that she’d never told anyone about the childhood incidents until the victim in the Marinette County case had come forward. The petitioner denied the allegations, both on a monitored telephone call with the sister and at trial. Id. The trial court provided the jury with a cautionary instruction. Id. at 17.

         The petitioner contends that no physical, forensic or eyewitness testimony was presented at trial to corroborate the victim’s testimony. Id. at 19. He argues that his counsel failed to object to improper remarks by the prosecutor at trial. Id. at 20. The jury convicted the petitioner. Id. at 2.

         The petitioner then moved the trial court for post-conviction relief, arguing (1) that the criminal complaint failed to provide adequate notice of the alleged crime, in violation of his due process rights; (2) that his trial counsel rendered ineffective assistance by failing to move to dismiss the amended complaint on due process grounds and by failing to object to two comments made during the prosecutor’s closing argument regarding other acts evidence; and (3) that the prosecutor’s remarks were so prejudicial as to require a new trial. The trial court agreed with the petitioner’s argument that the prosecutor’s remarks were prejudicial, granted the petitioner’s motion for a new trial on that basis, and denied his remaining requests for relief. Dkt. No. 1-2. The petitioner and the state filed cross-appeals in the Wisconsin Court of Appeals. Dkt. No. 1-3. That court concluded that the amended complaint violated the petitioner’s due process rights and that the trial court had erred by admitting other acts evidence, but it did not address challenge to the prosecutor’s closing argument remarks. Id. at 17-18, 23. The state then appealed to the Wisconsin Supreme Court, which reversed the Court of Appeals’ decision and remanded the case to the circuit court with instructions to reinstate the jury’s verdict. Dkt. No. 1-4, at 4-5. The circuit court revoked the petitioner’s bail on April 24, 2015, and the circuit court reinstated the original judgment of conviction on August 26, 2015. State v. Powell, 2011CF00090, available at https://wcca.wicourts.gov.

         The petitioner subsequently filed this federal habeas petition. Dkt. No. 1. The petition sets forth four grounds for habeas relief: (1) that the amended complaint violated the petitioner’s due process right to adequate notice of the charge against him; (2) that his trial counsel violated the petitioner’s Sixth Amendment right to adequate assistance of counsel because he failed to move the trial court to dismiss the complaint based on insufficient notice of the charge; (3) the trial court’s admission of other acts evidence violated his due process right to a fair trial; and (4) certain of the prosecutor’s remarks in his closing argument prejudiced the petitioner’s right to a fair trial. Dkt. No. 1 at 12. The petitioner asks the court to grant his petition, vacate his conviction, and either dismiss the case based on the constitutional insufficiency of the charging documents or remand the case to the trial court for a new trial based on the alleged violations of his due process rights. Id.

         II. THE PETITIONER MAY PROCEED ON EACH CLAIM IN HIS PETITION.

         The court now will review, or “screen” the petition. Rule 4 of the Rules Governing §2254 Proceedings says:

If it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner. If the petition is not dismissed, the judge must order the respondent to file an answer, motion, or other response within a fixed time . . . .

         At this stage, the court reviews the petition and its exhibits to determine if the petitioner has set forth claims arising under the Constitution or federal law that are cognizable on habeas review, exhausted in the state court system, and not procedurally defaulted.

         The petitioner’s claims that the amended complaint violated his due process right to notice of the charge against him, that his trial counsel rendered ineffective assistance by failing to file a motion to dismiss the complaint, that the trial court violated his due process right to a fundamentally fair trial by admitting evidence of other acts, and that the prosecutor’s alleged improper remarks deprived him of a fair trial are cognizable on habeas review. See, e.g., Fawcett v. Bablitch, 962 F.2d 617, 618 (7th Cir. 1992) (sufficiency of the indictment); United States v. Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005) (ineffective assistances based on counsel’s failure to file a motion); Watkins v. Meloy, 95 F.3d 4, 6-7 (7th Cir. 1996) (other acts evidence); United States v. Harper, 662 F.3d 958, 962 (7th Cir. 2011) (improper remarks during ...


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