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Sturdevant v. Hepp

United States District Court, W.D. Wisconsin

October 6, 2016

RANDALL HEPP, Defendant.

          OPINION & ORDER


         Pro se petitioner Adam M. Sturdevant is a Wisconsin prisoner confined at the Oregon Correctional Center. He has been convicted of his fifth offense for operating a motor vehicle while under the influence (OWI). Sturdevant seeks a writ of habeas corpus under 28 U.S.C. § 2254(a) to challenge his sentence imposed by the Wisconsin Circuit Court for Columbia County.

         I will deny Sturdevant's petition for three reasons. First, Sturdevant contends that the state government violated his due process rights by failing to produce him at two court hearings and that if he had attended, he would have accepted a plea offer from the state and serve a reduced sentence. His argument mistakenly assumes that he could have entered into a plea at those missed hearings. The state had already withdrawn the plea offer and Wisconsin law did not allow Sturdevant to enter into a plea at those hearings. Second, Sturdevant collaterally attacks his fourth OWI conviction based on alleged ineffective assistance of counsel, but ineffective assistance of counsel does not warrant challenging a prior conviction used to enhance a current sentence. Third, Sturdevant has failed to raise in the state courts a few issues of law or fact that he raises now, which I cannot consider in a habeas petition.


         This case involves five criminal convictions, six attorneys, and two Wisconsin counties. Sturdevant was charged with his fifth offense of OWI in November 2011 and he had an initial appearance during the same month before in the Columbia County. At the initial appearance, he waived the time limits for a preliminary hearing anticipating that he would waive his right to the preliminary hearing at a later date, and asked the court to schedule a return date. The court set a return date for December 2011 and released Sturdevant on bond. But while he was out on bond, Sturdevant was arrested on a bail-jumping charge in the Dane County. Sturdevant's counsel (the first of many) requested the return hearing to be postponed, and the Columbia County court rescheduled the hearing for March 2012 and issued a writ of habeas corpus directing the Dane County sheriff to produce Sturdevant at the March 2012 hearing.

         For unknown reasons, the sheriff's department did not execute the writ, and Sturdevant did not appear at the May 2012 hearing. But in Sturdevant's absence, his newly appointed second attorney appeared at the hearing and indicated that Sturdevant wanted to accept a plea offer that the state had made. According to Sturdevant, the proposed plea would have ensured that his Columbia County sentence ran concurrently to the Dane County sentence and that his Columbia County sentence would start immediately after his conviction.

         The Columbia County court set a new return date for June 2012 and issued another writ of habeas corpus. The Dane County sheriff's department again did not execute the writ, this time because petitioner had a hearing in the Dane County court on the same day.

         When Sturdevant finally appeared in the Columbia County court in August 2012 by the means of a third writ of habeas corpus, he was represented by his third attorney, and the Public Defender's office was appointing a fourth attorney for Sturdevant at Sturdevant's request. The prosecutor informed the court that the state had already withdrawn its plea offer and requested a preliminary hearing to be in September 2012.

         In September 2012, Sturdevant appeared with his fourth attorney and waived his right to a preliminary hearing. The prosecutor filed an information, and Sturdevant pleaded no contest to the fifth OWI charge. A month later, the Columbia County court sentenced him to two years of initial confinement and one year of extended supervision, to be served consecutively to the sentence from the Dane County court.[1]

         The Public Defender's office appointed a fifth attorney for Sturdevant after his conviction. The attorney advised him that he had no meritorious grounds for an appeal. Sturdevant then discharged his fifth attorney and proceeded pro se to challenge his Columbia County sentence in three separate ways. First, he submitted a postconviction motion in 2012. Second, he filed a petition for writ of habeas corpus, a so-called “Knight petition, ”[2] with the Wisconsin Court of Appeals in 2014. Third, he submitted another postconviction motion in 2015. Set forth below are the claims that Sturdevant presented before the state courts.

         A. 2012 postconviction motion

         In 2012, Sturdevant submitted a pro se postconviction motion, but the trial court denied his motion. 15-2, at 8. Sturdevant appealed to the Wisconsin Court of Appeals on three grounds:

(1) denial of his right to be present during the May and June 2012 hearings;
(2) the second and third attorneys' ineffective assistance of counsel, namely their failure to object to his absence during the May and June 2012 hearings and for failure to preserve various rights;[3] and
(3) denial of speedy trial.

Dkt. 15-2. The Wisconsin Court of Appeals affirmed the trial court's decision. Dkt. 15-5, at 5. Sturdevant did not petition the Wisconsin Supreme Court for further review.

         B. Knight petition

         When Sturdevant pursued a Knight petition with the Wisconsin Court of Appeals in 2014, he contended that his appellate counsel had failed to consider several appellate issues, forcing Sturdevant to discharge the attorney and proceed pro se. In his Knight petition, Sturdevant claimed ineffective assistance of appellate counsel on eight grounds, in the following order:

(1) failure to consider collateral attacks on Sturdevant's prior four OWI convictions;
(2) failure to recognize the failure of trial counsel (presumably all four of them) to consider collateral attacks on Sturdevant's fourth OWI conviction;
(3) failure to recognize that Sturdevant was entitled to one extra day of sentence credit;
(4) failure to consider trial counsel's failure to preserve Sturdevant's right to be present at the May and June 2012 hearings;
(5) failure to recognize trial counsel's failure to follow up with the trial court for the one extra day ...

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