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Washington v. Boughton

United States District Court, W.D. Wisconsin

August 16, 2016

GARY BOUGHTON, Warden, Wisconsin Secure Program Facility, Respondent.[1]


          WILLIAM M. CONLEY, District Judge.

         State inmate Rodney Washington has filed a petition for a writ of habeas corpus, challenging his state court conviction in Milwaukee County Case No. 00CF1310 under 28 U.S.C. § 2254. The respondent has filed an answer and both parties have submitted briefing. Because Washington is not entitled to the relief sought, his petition will now be dismissed.


         On March 16, 2000, shortly before the statute of limitations was set to expire, the State filed a John Doe complaint in Milwaukee County Case No. 00CF1310, charging “John Doe # 5” with four counts of first-degree sexual assault with use of a dangerous weapon, one count of second-degree sexual assault with use of force, and three counts of robbery. John Doe # 5 was identified in the caption of the complaint by a specific DNA profile. All of the crimes were alleged to have occurred between March 27, 1994, and January 14, 1995. Relying on the criminal complaint itself, the circuit court found probable cause and issued an arrest warrant for John Doe # 5 the same day the complaint was filed.

         On June 25, 2007, over seven years after issuing an arrest warrant in Milwaukee County Case No. 00CF1310, the Wisconsin State Crime Lab matched Washington’s DNA to DNA found on each of the victims. The State promptly filed an amended criminal complaint, naming Washington as the defendant. Following a trial, a jury found Washington guilty of four counts of first-degree sexual assault with the use of a dangerous weapon and three counts of second-degree sexual assault of a child. The circuit court then sentenced Washington to imprisonment for 100 years.

         On direct appeal, Washington argued that the trial court lacked personal jurisdiction over him because the criminal complaint and arrest warrant that were filed in 2000 did not identify him with reasonable certainty and therefore failed to toll the statute of limitations. Reasoning that the complaint was deficient, Washington argued further that his trial counsel was ineffective for failing to file a motion to dismiss. In addition, Washington argued that the trial court erred when it denied his request to represent himself at trial and his alternative request for substitution of counsel.

         The Wisconsin Court of Appeals rejected all of Washington’s arguments on the merits and affirmed the conviction. See State v. Washington, 2013 WI.App. 55 347 Wis.2d 550, 830 N.W.2d 723 (unpublished). The Wisconsin Supreme Court denied Washington’s petition for review, see State v. Washington, 2013 WI 87, 350 Wis.2d 729, 838 N.W.2d 637 (unpublished), and the United States Supreme court denied his request for a writ of certiorari. See Washington v. Wisconsin, 134 S.Ct. 1313 (2014).

         In his pending federal habeas corpus petition, Washington raises essentially the same claims that he presented on direct appeal. The respondent argues that Washington’s first ground for relief fails as a matter of law because it articulates, at most, a state law claim. The respondent argues further that none of Washington’s claims warrant relief.


         To prevail, a federal habeas corpus petitioner must show that he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §§ 2241(c), 2254(a). In deciding whether a habeas corpus petition merits relief, a reviewing court looks to the “last reasoned state-court opinion” to address the petitioner's claims. Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991); see also Ford v. Wilson, 747 F.3d 944, 949 (7th Cir. 2014) (“[O]ur inquiry focuses entirely on what occurred in the state court. In so doing, we look at ‘the decision of the last state court to rule on the merits of the petitioner’s claim.’”) (citation and quotation omitted). To the extent that Washington’s claims were addressed on the merits by the Wisconsin Court of Appeals, he must show that the state court’s adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

         A state court’s decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or reaches a different conclusion than the Supreme Court based on materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 404-08 (2000). A state court unreasonably applies clearly established precedent if it identifies the correct governing legal principle but unreasonably applies that principle to the facts of the case. See Brown v. Payton, 544 U.S. 133, 141 (2005); McNary v. Lemke, 708 F.3d 905, 913 (7th Cir.), cert. denied, 134 S.Ct. 136 (2013). In this context, an “unreasonable application of” federal law means “objectively unreasonable, not merely wrong; even ‘clear error’ will not suffice.” White v. Woodall, ___ U.S. ___, 134 S.Ct. 1697, 1702 (2014) (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)).

         The standard outlined in § 2254(d)(1) is exacting and “highly deferential, ” Burt v. Titlow, ___ U.S. ___, 134 S.Ct. 10, 15 (2013), demanding that state courts be given “the benefit of the doubt.” Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786 (2011). Relief is authorized only in cases “where there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with [Supreme Court] precedents.” Richter, 131 S.Ct. at 786.

         To prevail, “a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 131 S.Ct. at 786-87. In addition to the “formidable barrier” posed by this standard, Titlow, 134 S.Ct. at 16, the petitioner bears the burden of rebutting the state court’s factual findings “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Alternatively, a petitioner must show that the state court’s adjudication of the claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the [s]tate court proceeding.” 28 U.S.C. § 2254(d)(2). None of petitioner Washington’s challenges begin to overcome this extraordinarily high bar.

         I. Sufficiency of the Criminal Complaint

         Washington first contends that the criminal complaint filed in March 2000 was insufficient to identify him with reasonable certainty and, therefore, did not toll the statute of limitations for the charged offenses. If so, the complaint should have been dismissed for lack of personal jurisdiction.

         The respondent correctly notes that the sufficiency of a state criminal charging instrument presents, at most, an issue of state law. So is application of the state statute of limitation in this instance. See Wis. Stat. 939.74(1); State v. Jennings, 2003 WI 10, ¶¶ 15-27, 259 Wis.2d 523, 657 N.W.2d 393 (outlining the legislative history of the Wisconsin criminal statute of limitation, tolling and the sufficiency of a criminal complaint for personal jurisdiction).

         Because Washington did not fairly present a federal claim concerning the criminal complaint on direct appeal, respondent argues that he has procedurally defaulted such a claim on federal habeas review. See, e.g., O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); Ward v. Jenkins, 613 F.3d 692, 696B97 (7th Cir. 2010). While a habeas petitioner may overcome procedural default by demonstrating cause for the default and actual prejudice, this would require a showing that the court’s failure to consider the claim would result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 7750 (1991). Here, Washington neither attempts to demonstrate cause, nor to show that any other exception to the doctrine of procedural default applies. Accordingly, Washington is procedurally barred from pursuing any review of a potential federal constitutional claim concerning the sufficiency of the state’s charging instrument.

         Moreover, because there is no federal constitutional right to a grand jury indictment in state prosecutions, see Hurtado v. California, 110 U.S. 516 (1884), the sufficiency of a state charging instrument is governed by state law. See Liner v. Phelps, 731 F.2d 1201, 1203 (5th Cir. 1984) (observing that a state charging instrument is fatally defective only when there are no circumstances under which there could be a valid conviction based on that instrument, and that “determination can be made only by looking to the law of the state” (emphasis in original)). In that respect, the sufficiency of a state indictment “is not a matter for federal habeas corpus relief unless the indictment is so defective that the convicting court had no jurisdiction.” Evans v. Cain, 577 F.3d 620, 624 (5th Cir. 2009).

         Unfortunately for Washington, the Wisconsin Court of Appeals already considered this argument, and it concluded rather persuasively that “the original complaint and arrest warrant were sufficiently specific to toll the statute of limitations and to confer the trial court with personal jurisdiction” for the following reasons:

“Personal jurisdiction in criminal cases involves the power of the circuit court over the physical person of the defendant.” [State v. Dabney, 2013 WI.App. 108, ¶ 10, 264 Wis.2d 843, 851, 663 N.W.2d 366]. In order to confer personal jurisdiction: (1) a complaint or indictment must be filed stating that there is probable cause to believe that a crime has been committed and that the defendant probably committed it, and (2) there must be compliance with the relevant statute of limitations.[2] Id.
Throughout his brief, Washington argues that the original complaint and arrest warrant failed to identify him with “reasonable certainty, ” thereby failing to toll the statute of limitations. However, in doing so, Washington mistakenly applies the “reasonable certainty” requirement to both the complaint and the arrest warrant. See id., ¶ 12. “The ‘reasonable certainty’ requirement is specific to the warrant only.” Id. Wisconsin Stat. § 968.04(3)(a)4. requires an arrest warrant to “[s]tate the name of the person to be arrested, if known, or if not known, designate the person to be arrested by any description by which the person to be arrested can be identified with reasonable certainty.” (Emphasis added.) The complaint need only set forth a written statement of the essential facts constituting the offense, including answering the question of who is being charged and why. Dabney, 264 Wis.2d ...

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