United States District Court, E.D. Wisconsin
DECISION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS AND DISMISSING CASE
CLEVERT, JR. U.S. DISTRICT JUDGE
Schroder petitions under 28 U.S.C. § 2254 for a writ of
habeas corpus, challenging his convictions for second-degree
sexual assault of a child, which stem from two consolidated
cases. Schroder was convicted in Milwaukee County Circuit
Court and sentenced to a total of eight years of confinement
and twelve years of extended supervision.
grounds for relief are: (1) an
ineffective-assistance-of-counsel claim regarding various
errors by two different attorneys; (2) a claim that
Schroder's no-contest plea was entered unknowingly and
involuntarily due to his failure to understand the elements
that needed to be proved and not being informed of possible
civil commitment under Wis. Stats. ch. 980; (3) a claim that
his plea withdrawal request was improperly denied; (4) a
claim that the state violated the plea agreement; (5) a claim
that he was improperly assessed a DNA surcharge; (6) a claim
that counsel failed to object to the presentence
investigation report's recommendation upon which the
circuit placed too much reliance; and (7) a claim that
Schroder's due process right was violated because certain
evidence was withheld by the defense.
exhausted these issues in his direct appeal in the state
courts. He filed a motion for postconviction relief under
Wis.Stat. § 974.02. The motion was denied on August 19,
2010, and the Wisconsin Court of Appeals affirmed in its
decision on December 28, 2011. Schroder's request for
review was denied by the Supreme Court of Wisconsin.
Respondent agrees that Schroder has exhausted his available
state court remedies on the remaining grounds for relief and
that his petition was timely filed. (Doc. 11 at 2, 4; Doc. 29
Magistrate Judge Goodstein issued his screening order in this
case,  Schroder and respondent filed briefs that
were followed by Schroder's reply brief. Respondent
submitted pertinent portions of the record including court
transcripts from Schroder's change of plea hearing and
Schroder's sentencing hearing. In addition, respondent
provided copies of Schroder's correspondence with the
state court and Schroder's motion for post-conviction
asks for an evidentiary hearing, that his sentence be vacated
and that a new trial be ordered.
OF REVIEW AND STANDARD FOR EVIDENTIARY HEARING
petition seeking a writ of habeas corpus may not be granted
as to any claim that was adjudicated on the merits in state
court unless the decision on that claim “resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established” U.S. Supreme Court
law or “was based on an unreasonable determination of
the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d)(1), (2). A
state-court decision is “contrary to” Supreme
Court law if the state court arrived at a conclusion opposite
that reached by the Supreme Court on a question of law or if
the state court decided the case differently than the Supreme
Court on facts that are materially indistinguishable.
Williams v. Taylor, 529 U.S. 362, 405-06, 413
(2000). A state court decision is an “unreasonable
application” of Supreme Court law if the state court
identified the correct governing legal principle but
unreasonably applied that principle to the facts of the case.
Id. at 407-09, 413. Importantly for this case, a
state court's fact determinations are presumed correct
and a petitioner must rebut the presumption by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1).
federal court analyzing the “unreasonable
application” prong of § 2254(d)(1) “should
ask whether the state court's application of clearly
established federal law was objectively unreasonable.”
Id. at 409. This standard is a “substantially
higher threshold” than whether the state court's
determination was incorrect. Schriro v. Landrigan,
550 U.S. 465, 473 (2007); see Cullen v. Pinholster,
563 U.S. 170, 182 (2011) (stating that the standard of §
2254(d) is difficult to meet and highly deferential,
demanding that state-court decisions receive the benefit of
the doubt). As the Supreme Court has stated, if the standard
of review in a habeas case
is difficult to meet, that is because it was meant to be. . .
. [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 fair-minded disagreement.
Harrington v. Richter, 562 U.S. 86, 102-03 (2011).
relevant state court decision is that of the last state court
to review the issue. Lucas v. Montgomery, 583 F.3d
1028, 1030 (7th Cir. 2009). The standard of review in §
2254(d) applies even where the state court issued only a
summary denial. Cullen, 563 U.S. at 187. In
reviewing a summary denial, the habeas court must determine
what arguments or theories could have supported the state
court's decision and ask whether fair-minded jurists
could disagree that those arguments or theories are
inconsistent with a prior decision of the U.S. Supreme Court.
Id. at 188.
under § 2254(d)(1) (the “contrary to” or
“unreasonable application” provision) is limited
to the record before the state court that adjudicated the
claim on the merits. Cullen, 563 U.S. at 180-82.
Because the deferential standards in § 2254(d) control,
this court must take those standards into account when
deciding whether an evidentiary hearing is appropriate.
Schriro, 550 U.S. at 474. Any evidence that would be
introduced in federal court would be irrelevant to review
under § 2254(d)(1). Cullen, 563 U.S. at 184-85.
If a claim has been adjudicated on the merits by a state
court, the federal habeas petitioner must rely only on the
record that was before the state court. Id.
§ 2254(d)(1) does not bar federal habeas relief-for
instance when a claim was not adjudicated on the merits in
state court-§ 2254(e)(2) permits an evidentiary hearing
in limited circumstances. Cullen, 563 U.S. at
185-86. If the petitioner failed to develop the factual basis
of a claim in state-court proceedings, the court may conduct
an evidentiary hearing only if the petitioner shows that (1)
the claim relies on either a new rule of constitutional law
made retroactive to cases on collateral review or a factual
predicate that could not have been previously discovered
through the exercise of due diligence, and (2) the facts
underlying his claim would be sufficient to establish by a
clear and convincing evidence that but for the constitutional
error no reasonable fact-finder would have found him guilty.
Ineffective assistance of counsel
contends that numerous errors by two of his attorneys
constituted ineffective assistance of counsel. To establish
ineffective assistance of counsel a petitioner must show that
counsel's performance was deficient and that he was
prejudiced as a result. See Strickland v.
Washington, 466 U.S. 668, 687 (1984).
performance prong of the Strickland test, the
petitioner must establish that “counsel's
representation fell below an objective standard of
reasonableness.” Id. at 688. The court must
determine “whether, in light of all the circumstances,
the identified acts or omissions were outside the wide range
of professionally competent assistance.” Id.
at 690. Strickland permits latitude in permissible attorney
conduct. See id. at 689. Judicial scrutiny is
“highly deferential” and the court strongly
presumes that counsel's conduct was reasonable.
Id. The petitioner must overcome the presumption
that the challenged action might be considered sound trial
strategy. Id. Counsel's performance must be
evaluated from his or her perspective at the time; hindsight
should not distort the evaluation. Id.
demonstrate prejudice, the petitioner “must show that
there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. This
standard requires a substantial, not just conceivable,
likelihood of a different result. Cullen, 563 U.S.
state trial court rejected Schroder's
ineffective-assistance-of-counsel claims on the merits
without holding any hearing. Because the state court addressed
the merits of this argument, no hearing is allowed in this
court under Cullen, notwithstanding that the trial
court held no hearing. If on the record the Milwaukee County
Circuit Court's decision was not contrary to or an
unreasonable application of U.S. Supreme Court law and was
not based on an unreasonable determination of the facts in
light of the evidence presented in the State court
proceeding, Schroder's petition must be denied.
August 19, 2010, decision, the circuit court considered and
rejected Schroder's ineffective-assistance-of-counsel
arguments by applying the controlling standard of
Strickland. (Doc. 1 at 2-5.) Thus, the decision is
not contrary to Supreme Court authority.
contends that trial counsel (Attorney Cleghorn) was
ineffective for a myriad of reasons, including failing to
prepare a defense, failing to interview certain witnesses,
failing to allow Schroder to view a piece of evidence (a DVD
recording of the statement of one of the victims), and
inadequate communication. As for Schroder's claim that
counsel failed to prepare a defense, Judge Martens wrote that
all of the claims against counsel “were virtually
addressed by the evidentiary hearing held on defendant's
motion to withdraw his pleas.” (Doc 1. at 17.) During
that hearing, held by Judge McMahon, Judge McMahon found as
The defendant wanted a defense. But if there is no defense in
fact, the attorney can't make it up.
The only defense is where the facts lead, and here the
attorney said the defense was that he did not do it, that the
State did not have sufficient evidence that he did it.
These witnesses the defendant wanted primarily would have no
relevance but certainly not admissible testimony to offer
assuming the description of their testimony as set forth on
(Doc. 13-2 at 121-22.) Regarding Schroder's claim that
counsel failed to interview certain witnesses, Judge Martens
wrote that counsel
testified [in the evidentiary hearing held on defendant's
motion to withdraw his pleas] that she had made attempts to
contact Curt Lanhoff, one of the witnesses (the grandma's
boyfriend in one case) which the defendant claims she failed
to contact, but was told he wasn't living with the
grandma at that house any more. She also testified she
attempted to contact Roger Schroder by letter, another
witness (defendant's brother) which the defendant wanted
her to contact. She stated this witness was in state custody,
and she did not receive a response from him. The court found
that the evidence that the defendant wanted to present from
these witnesses would not have been admissible in any case.
These are just some of the examples which sufficiently
address the defendant's current claims.
(Doc. 1 at 18 (internal citations omitted).) Regarding
Schroder's claim that he was not allowed to view a DVD
entered into evidence, Judge Martens pointed to the testimony
of counsel from the evidentiary hearing: “Counsel
testified that she tried on a number of occasions to get
clearance from the jail to bring the DVD in, but could not do
so.” (Doc. 1 at 18.) In addressing Schroder's claim
that he received inadequate communication from counsel, Judge
Martens relied on the findings from the evidentiary hearing.
During that hearing, Judge McMahon stated:
I realize that even now there is some disagreement as to how
many letters Miss Cleghorn sent, how long she spent with the
defendant; but there is no question she met with the
defendant, there is no question that on the day of trial on
that second day she met with him extensively and talked with