United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY, District Judge.
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.
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
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.
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.
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N.W.2d 723 (unpublished).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).
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
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. §
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
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.
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.
Sufficiency of the Criminal Complaint
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.
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).
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.
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).
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
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 ...