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Barnes v. Smith

United States District Court, E.D. Wisconsin

July 7, 2016

MAURICE BARNES, Petitioner,
v.
JUDY SMITH, Warden, Oshkosh Correctional Institution, [1] Respondent.

          ORDER SCREENING PETITION (DKT. NO. 1) AND REQUIRING RESPONSE

          HON. PAMELA PEPPER United States District Judge

         I. INTRODUCTION

         On December 30, 2015, Maurice Barnes, representing himself, filed a petition pursuant to 28 U.S.C. §2254, asserting that his state conviction and sentence violated the Constitution. Dkt. No. 1. When he did not include the filing fee, a motion to proceed without paying the fee, or his consent forms, the clerk’s office sent the petitioner a letter requesting those items. Dkt. No. 2. On January 15, 2016, he paid the $5.00 filing fee and filed a refusal to consent to the authority of the magistrate judge to issue the final judgment. Dkt. No. 3. The court now will screen the petition.

         In 2009, the petitioner faced five criminal counts in Kenosha County Circuit Court. State v. Barnes, No. 2009CF000702, available at https://wcca.wicourts.gov. He pled guilty to one count of obstructing of an officer. A jury found him guilty of two counts of second degree sexual assault and one count of false imprisonment. The jury found him not guilty of one count of strangulation and suffocation. On October 27, 2010, the state court sentenced the petitioner to the following: six years’ imprisonment and five years of extended supervision for Count I (second degree sexual assault); one year and six months’ imprisonment and one year and six months’ extended supervision for Count III (false imprisonment), to run concurrent with the sentence imposed on Count I; nine months’ imprisonment for Count IV (obstructing an officer), to run consecutively to the sentence imposed in Count I; and six years’ imprisonment and five years’ extended supervision for Count V (second degree sexual assault), to run consecutively to the sentence imposed in Count I. Id. On October 28, 2010, the court entered the judgment of conviction. Currently the petitioner is incarcerated at Oshkosh Correctional Institution.

         In his petition for habeas relief, the petitioner raises five claims. Dkt. No. 1 at 12-15, 17. In ground one, he “argues that his trial counsel was ineffective in not investigating MDO’s mental health record’s [sic].” Id. at 7. The petition does not explain who “MDO” is, but the petitioner attached to the petition a letter explaining his relationship with a woman whose name started with the letter “M;” the court infers that “MDO” are the initials of the victim. The petition asserts that counsel’s failure to investigate the victim’s mental health records “deprived him of the right to a meaningful opportunity to present a complete defense.” Id. at 13. The court interprets this as a Sixth Amendment claim for ineffective assistance of counsel.

         In ground two, the petitioner asserts “that his trial counsel was ineffective in not providing an expert witness” to explain “the cause of MDO’s injuries.” Id. The petitioner argues that his trial counsel did not sufficiently develop “a consent theory.” Id. at 13-14. This is another claim that his Sixth Amendment right to effective assistance of counsel was violated.

         In ground three, the petitioner “argues that the trial court abused its discretion when it failed to uphold the law or enforce the rules of law or honor the spirit of the law.” Id. at 14. Specifically, the petitioner asserts that the trial court did not “assist the jury in understanding what the requirements of the law are and/or in understanding what their duties were as jurors.” Id. According to the petitioner, the jury asked several questions of the state-court judge, and the petitioner argues that the judge answered insufficiently, including a refusal “to give clear and unambiguous jury instructions.” Id. The court interprets this as a claim that the trial court violated the petitioner’s right to due process guaranteed by the Fourteenth Amendment.

         In ground four, the petitioner contends “that trial counsel provided ineffective assistance, when he failed to explore the motivation of the states [sic] witnesses who testified . . . .” Id. at 15. In particular, the petitioner challenges his trial counsel’s failed to impeach or question testimony of police officers, which “deprived” the petitioner “of a fair trial.” Id. The court determines that this is a Sixth Amendment claim for ineffective assistance of counsel.

         In his fifth ground, the petitioner “argues that trial counsel provided ineffective assistance under the Sixth Amendment when he failed to explore the motivation” behind MDO’s testimony. Id. at 17. The petitioner claims that MDO provided inconsistent testimony and that his trial attorney failed to address those inconsistencies. This is a Sixth Amendment claim for ineffective assistance of counsel.

         The petitioner asks for a new trial.

         II. EXHAUSTION OF REMEDIES

         In order to decide whether to allow this case to move forward, the court first must determine whether the petitioner appears, on the face of his petition, to have exhausted his state remedies on these five claims. 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). This means, basically, that before a person can get a federal judge to review his arguments on a habeas petition, that person first must appeal the issue all the way up to the highest court in the state for a ruling on the merits. Lieberman v. Thomas, 505 F.3d 665, 669 (7th Cir. 2007) (citations omitted). When a federal judge reviews a petition and realizes that the petitioner has not exhausted his state-court remedies, the judge may either dismiss the case entirely, stay the federal case to let the petitioner go back to state court to exhaust his remedies, or allow the petitioner to amend his petition to remove the unexhausted claims. 28 U.S.C. §2254(b)(1)(A). See also Rhines v. Weber, 544 U.S. 269, 278 (2005); Rose v. Lundy, 455 U.S. 509, 510 (1982); Dressler v. McCaughtry, 238 F.3d 908, 912 (7th Cir. 2001).

         On October 27, 2010, the Kenosha County Circuit Court sentenced the petitioner. Dkt. No. 1 at 2. On October 28, 2010, the state court entered a judgment of conviction against him. State v. Barnes, No. 2009CF000702, available at https://wcca.wicourts.gov. A review of the state-court docket reveals that the petitioner filed a notice of intent to pursue post-conviction relief with the trial court, and a notice of appeal to the Wisconsin Court of Appeals. On February 15, 2012, the court of appeals dismissed the appeal “in favor of postconviction proceedings in the circuit court.” Id.

         On March 15, 2012, the petitioner filed a motion for postconviction relief in the Kenosha County Circuit court, and, on December 11, 2012, that court denied the motion. Id. On January 3, 2013, the petitioner filed a notice of appeal with the Wisconsin Court of Appeals. On July 16, 2014, the court of appeals affirmed the Kenosha County court’s ...


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