United States District Court, E.D. Wisconsin
JOEL M. HURLEY, Petitioner,
JUDY P. SMITH, Respondent.
ORDER SCREENING §2254 HABEAS CORPUS PETITION
(DKT. NO. 1), AND ORDERING THE RESPONDENT TO ANSWER OR
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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
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.
THE PETITIONER MAY PROCEED ON EACH CLAIM IN HIS
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 . . . .
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.
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 ...