Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Rodriguez v. Hepp

United States District Court, E.D. Wisconsin

October 11, 2016

MANUEL RODRIGUEZ, Petitioner,
v.
WARDEN RANDALL R. HEPP, Respondent.

          DECISION AND ORDER

          WILLIAM E. DUFFIN, U.S. MAGISTRATE JUDGE

         I. Procedural History

         Petitioner Manuel Rodriguez is incarcerated pursuant to a judgment of the Milwaukee County Circuit Court. (ECF No. 14-1.) On April 8, 2011, Rodriguez pled guilty to one count of first-degree sexual assault of a child and one count of repeated first-degree sexual assault of a child. (ECF No. 14-1.) As to the first offense, the court sentenced Rodriguez to 10 years in prison. (ECF No. 14-1.) As to the second offense, the court sentenced him to 10 years of initial confinement to be followed by 5 years extended supervision, to be served consecutive to count one. (ECF No. 14-1.)

         On appeal to the Wisconsin Court of Appeals, Rodriguez's appointed attorney filed a no-merit report. (ECF No. 14-2.) As issues of potential merit, counsel raised the question of whether Rodriguez's pleas were knowing, voluntary, and intelligent and whether the sentence imposed was an abuse of discretion. (ECF No. 14-2.) Rodriguez, pro se, responded to counsel's no-merit report wherein he expanded upon the claim that his plea was involuntary and added a claim that his trial counsel was ineffective. (ECF No. 14-3.)

         The Wisconsin Court of Appeals summarily affirmed Rodriguez's conviction. (ECF No. 14-5.) The Wisconsin Supreme Court denied review. (ECF No. 14-8.)

         Rodriguez filed the present petition for a writ of habeas corpus on April 23, 2015. (ECF No. 1.) He did not submit a brief along with his petition. The petition was randomly assigned to this court, and all parties subsequently consented to have this court enter final judgment. (ECF Nos. 3, 7.)

         Rodriguez presented three claims for relief in his petition. Although presented as three claims, for purposes of review the court separates his first claim into two claims. Rodriguez first alleges that his trial counsel was ineffective for failing to investigate Rodriguez's version of events, the contradictions in the victims' statements, and one victim's history of making false statements. Second, he alleges that his plea was involuntary. Third, he alleges that he was denied the opportunity to present witnesses in his favor. Finally, he argues that his appellate counsel was ineffective because she failed to undertake any investigation into his case.

         II. Mixed Petition

         Generally, before a petitioner may seek habeas corpus relief in federal court, he must first exhaust all available avenues for relief in the state courts. 28 U.S.C. § 2254(b)(1)(a); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). There is no indication that Rodriguez presented to any state court his claim that his appellate counsel was ineffective. Such a claim would ordinarily be presented to the Wisconsin Court of Appeals by what is commonly referred to as a Knight petition. See State v. Knight, 168 Wis.2d 509, 484 N.W.2d 540 (1992). There is no indication that Rodriguez is foreclosed from presenting his claim for ineffective assistance of appellate counsel in this manner. Because Rodriguez has not exhausted his state court remedies as to that claim, it means that his habeas petition is “mixed” in that it contains both exhausted and unexhausted claims.

         When a petition for a writ of habeas corpus contains even one unexhausted claim, federal law generally prohibits the court from granting the petition, even on a claim for which the petitioner has exhausted his state court remedies. See Rose v. Lundy, 455 U.S. 509, 522 (1982). When the court identifies a petition as a mixed petition, the petitioner generally has two options. First, he could return to state court to exhaust his unexhausted claim, often accompanied by a request that the federal court stay the federal proceedings and hold his petition in abeyance while he does so. Second, he could withdraw his unexhausted claim, thereby enabling the court to consider the merits of his exhausted claims but foregoing the opportunity to have a federal court consider the unexhausted claim.

         However, stay and abeyance is appropriate in only limited circumstances. Rhines v. Weber, 544 U.S. 269, 277 (2005). If employed too frequently the stay and abeyance procedure would undermine Congress's goal of encouraging finality of state court judgments and streamlining federal habeas proceedings. Id. Thus, a stay is appropriate only if the claim the petitioner seeks to present in the state court is not clearly meritless. Id. Additionally, there must have been good cause for the petitioner's failure to have sought relief earlier in state court. Id.

         Rodriguez does not ask this court to stay these proceedings and hold them in abeyance so that he can return to state court to exhaust his remedies regarding his claim of ineffective assistance of appellate counsel. Having not even requested that relief, Rodriguez obviously has made no effort to demonstrate that such relief is appropriate here. Nor has he presented any argument that good cause exists for his failure to have earlier sought relief on that claim in state court.

         As a result, the court could dismiss the petition in its entirety without considering the merits of any of his claims. Because federal law generally limits a petitioner to a single petition for a writ of habeas corpus, dismissal would mean that Rodriguez likely would be forever barred from challenging any aspect of his conviction in a federal petition for a writ of habeas corpus. Consequently, as an alternative, the court will deem Rodriguez's claim regarding the ineffective assistance of appellate counsel withdrawn and proceed to the merits of those claims as to which he has exhausted his state court remedies.

         III. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.