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Wagner v. Douma

United States District Court, E.D. Wisconsin

June 10, 2016

TIMOTHY DOUMA, Respondent.


          HON. PAMELA PEPPER United States District Judge

         Jody Michael Wagner, who is representing himself, 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. This case is now before the court for screening of the petition under Rule 4 of the Rules Governing §2254 Cases.

         I. BACKGROUND

         On November 18, 2010, the petitioner was convicted of two crimes after a jury trial: (1) aggravated battery, and (2) first degree reckless injury in the Circuit Court of Waukesha County, Wisconsin. Dkt. No. 1, at 2; State v. Wagner, 2010CF000554, available at He was represented by counsel during the trial, and his trial counsel filed a no-merit report after the petitioner filed a notice of appeal. Dkt. No. 1-1 at 1. The petitioner filed a response to the no-merit report, in which he asserted that the circuit court lacked subject matter jurisdiction, the state failed to meet its burden of proof on the reckless injury charge, the state failed to disclose certain evidence to the defense, and that several incidents that occurred during the trial deprived him of a fair trial. The Wisconsin Court of Appeals concluded that the petitioner’s claims lacked any arguable basis and affirmed his conviction. Dkt. No. 1-1, at 1-6. The Wisconsin Supreme Court denied the petitioner’s petition for review. Id. at 7.

         The petitioner then filed in the circuit court a motion for post-conviction relief under Wis.Stat. §974.06, raising nine grounds for relief. Id. at 8-9. He included in those grounds several issues that he had raised on direct appeal: insufficiency of the evidence, ineffective assistance of counsel, prosecutorial misconduct, Brady and Miranda violations, improper outside influences on the jury, and challenges to the trial court’s subject matter jurisdiction and the sentence imposed by that court. The circuit court denied the petitioner’s post-conviction motion in its entirety. Id. at 8-17. The petitioner appealed the circuit court’s decision to the Wisconsin Court of Appeals, which summarily affirmed the trial court’s order denying relief under §974.06. Id. at 18-23. The Wisconsin Supreme Court denied the petitioner’s petition for review. Id. at 24.

         The petitioner subsequently filed this federal petition. The petition sets forth six grounds for habeas relief, all of which the petitioner raised either on direct appeal, in his Wis.Stat. §974.06 motion, or both: (1) that his conviction on the reckless injury charge violates his due process rights Fourteen Amendment because the evidence was insufficient to show he acted with utter disregard for human life; (2) that he was denied his Sixth Amendment right to effective assistance of counsel because his trial counsel failed to retain a medical expert to testify at trial; (3) that he was denied his Sixth Amendment right to effective assistance of counsel because his post-conviction counsel failed to discover that an informant allegedly was compensated for his testimony; (4) that the circuit court lacked jurisdiction because the statute of limitations purportedly had expired; (5) that the jurors were improperly influenced in violation of his due process rights; and (6) that his right to a speedy trial was violated because the state unreasonably delayed his trial. Dkt. No. 1 at 9-16. The petitioner contends that the court should grant his petition, order an evidentiary hearing, vacate his conviction and sentence, and order a new trial. Id. at 23.


         The court will now proceed to 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 of ineffective assistance of trial and post-conviction counsel, due process violations, and subject matter jurisdiction generally are cognizable on habeas review, so the court will proceed to evaluate whether those claims were exhausted in the state court process or have been procedurally defaulted.

         In order to decide whether the petitioner’s habeas case can move forward, the court must determine whether it appears, on the face of the petition, that the petitioner exhausted his state remedies on this claim. Section 2254 states, “An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State ..... The United States Court of Appeals for the Seventh Circuit has held that a district court judge cannot consider the merits of a petitioner’s habeas argument “unless the state courts have had a full and fair opportunity to review them.” Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991). A prisoner exhausts a constitutional claim when he has presented it to the highest state court for a ruling on the merits. O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 1733 (1999); Arrieta v. Battaglia, 461 F.3d 861, 863 (7th Cir. 2006). Once the state’s highest court has had a full and fair opportunity to evaluate the merits of the claim, a prisoner is not required to present it again to the state courts. Humphrey v. Cady, 405 U.S. 504, 516 n. 18, 92 S.Ct. 1048, 1055 n. 16 (1972). From the face of the petition and the attachments to the petition, it appears that the petitioner has satisfied this requirement; he appears to have presented his claims to each level of the Wisconsin state courts (some of them he presented twice), and was denied relief.

         Finally, the court considers whether the petitioner has procedurally defaulted any of his claims. Even if a petitioner has exhausted review of a constitutional claim in the state courts, it is possible that a federal habeas court can be foreclosed from reviewing the claim on the merits because of a “procedural default.” A criminal defendant “procedurally defaults” a claim-and loses the right to federal habeas review-if the last state court that issued judgment “ ‘clearly and expressly’ states that its judgment rests on a state procedural bar.” Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 1043 (1989) (quoting Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638 (1985)). There can be several kinds of state procedural bars, including, but not limited to, failing “to raise a claim of error at the time or in the place that state law requires.” Trevino v. Thaler, --- U.S. ---, 133 S.Ct. 1911, 1917 (2013).

         “When a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court.” Ylst v. Nunnemaker, 501 U.S. 797, 801, 111 S.Ct. 2590, 2593 (1991). In other words, a federal habeas court cannot review a petitioner’s claims when the state court has declined to review them on the merits “pursuant to an independent and adequate state procedural rule, ” unless the petitioner can demonstrate either cause for the default and resulting prejudice, or that the failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546 (1991).

         When considering whether a state court decision rests on a state procedural default, federal courts must look to “the last explained state court judgment.” Ylst, 501 U.S. at 805, 111 S.Ct. at 2595. “The test to avoid procedural default in federal court is whether the state court’s decision rests on the substantive claims primarily, that is, whether there is no procedural ruling that is independent” of the court’s decision on the merits of the claims. Holmes v. Hardy, 608 F.3d 963, 967 (7th Cir. 2010). “If the last state court to be presented with a particular federal claim reaches the merits, it removes any bar to federal-court review that might otherwise have been available.” Ylst, at 801, 111. S.Ct. 2593. However, “a state court that separately reaches the merits of a substantive claim may also produce an independent procedural ruling ...

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