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Smith v. Boughton

United States District Court, W.D. Wisconsin

November 29, 2016

THOMAS C. SMITH, Petitioner,
GARY BOUGHTON, Warden, Wisconsin Secure Program Facility, Respondent.


          WILLIAM M. CONLEY District Judge

         State inmate Thomas C. Smith filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his state court conviction for conspiracy to commit first-degree sexual assault of a child. The respondent answered, and both parties have submitted briefing. Because Smith is not entitled to the relief sought, his petition will now be dismissed.


         In Waupaca County Case No. 03CF136, Smith was originally charged with the following four counts of conspiracy to commit child sexual abuse: (1) exposing a child to harmful material; (2) child enticement; (3) sexual assault of a child under 13 years of age; and (4) repeated sexual assault of a child. The underlying facts giving rise to these charges were “briefly described” by the Wisconsin Court of Appeals as being part of “one course of conduct.”

The alleged conduct . . . occurred entirely while Smith was in prison. The complaint alleged that Smith had telephone conversations with Elizabeth Lueck (whose legal last name was later determined to be Peterson). During those conversations, Smith was alleged to have encouraged certain activity between [Peterson] and a female who had not yet attained the age of thirteen. The activity included Peterson's insertion of sex toys into the child and viewing adult videotapes with the child. The complaint alleged that these activities did, in fact, occur on a repeated basis. The complaint alleged facts from which it could be inferred that Smith intended these activities to “groom” the child for sexual activity with him after his release from prison. In addition, Smith was alleged to have provided money to Peterson.

State v. Smith, 2006AP2936, at 1-2 (Feb. 20, 2008).

         Smith agreed to enter a no-contest plea to count three of the charge for conspiracy to commit sexual assault of a child. In exchange for Smith's plea of no contest, the State agreed to dismiss the remaining counts, while reading them into the record for sentencing purposes. See Wis. Stat. § 973.20(1g)(b) (“‘Read-in crime' means any crime that is uncharged or that is dismissed as part of a plea agreement, that the defendant agrees to be considered by the court at the time of sentencing and that the court considers at the time of sentencing the defendant for the crime for which the defendant was convicted.”). The State also agreed to recommend a sentence of seven years in prison, to be followed by a ten-year term of extended supervision. After considering the presentence report, the circuit court rejected the State's recommendation, finding it inadequate in light of the abhorrent nature of the offense and Smith's lengthy criminal history, which included prior sex offenses. Accordingly, the circuit court sentenced Smith to serve 20 years in prison, followed by a 20-year term of extended supervision.

         On direct appeal, Smith's appointed counsel initially filed a no-merit report under Wis.Stat. § 809.32, advising that there were no non-frivolous grounds for appeal. See Anders v. California, 386 U.S. 738 (1967). After scrutinizing the record independently, the Wisconsin Court of Appeals identified one issue for further review: whether Smith understood the basis for his plea to be under an “inchoate” theory or a “completed crime” theory of conspiracy. State v. Smith, 2006AP2936, at 3.

         In Wisconsin, a defendant can be charged with conspiracy for an inchoate or incomplete crime if he or any other party to the conspiracy has taken an act in furtherance of the contemplated crime. See Wis. Stat. § 939.31.[1] Conspiracy can also form the basis for criminal liability as a party to a crime that was completed, but in which the defendant was not a person who directly committed the crime. See Wis. Stat. § 939.05(2)(c).[2] The court of appeals questioned, therefore, whether Smith's plea was knowingly or intelligently made. State v. Smith, 2006AP2936, at 4.

         To clarify the issue identified by the court of appeals, Smith's appellate counsel then moved to dismiss the appeal. Instead, he pursued a motion for postconviction relief with the circuit court. In that motion, Smith sought to withdraw his plea on the grounds that it could not have been knowingly or intelligently made without an understanding of the State's actual theory of the conspiracy.

         At an evidentiary hearing on his motion for postconviction relief, Smith's trial attorney testified that he had always understood Smith was entering a plea under a completed-crime conspiracy based on his involvement as a party to acts of sexual assault committed by Elizabeth Peterson. (Dkt. # 24, Hearing Trans., at 5-6, 13.) As support, Smith's attorney presented his notes and a plea questionnaire based on the completed-crime theory of conspiracy. (Id. at 6-10.) Before Smith entered his no-contest plea, his trial attorney described going over the plea questionnaire with Smith, who initialed each paragraph and appeared to understand it. (Id. at 10-12.) In turn, Smith testified that he could not remember discussing the precise nature of the State's conspiracy theory and denied having an understanding of the elements that were outlined in the plea questionnaire. (Id. at 15, 17.)

         After hearing all of the testimony, the circuit court found Smith “was operating . . . under an assumption that there had been completed sexual assaults which had taken place” and understood that his plea involved a completed crime. (Id. at 34.) Crediting the testimony from Smith's trial attorney and supporting documentation prepared in connection with the plea, the circuit court, therefore, found that Smith knowingly, voluntarily and intelligently entered a no-contest plea to the conspiracy liability based upon criminal acts actually completed by Elizabeth Peterson at Smith's direction, not based on any inchoate or anticipated future acts to be committed by Smith after his release from prison. (Id. at 36-41.)

         After the circuit court denied Smith's postconviction motion, he appealed, arguing that his plea was invalid and not knowingly made with an adequate understanding of the State's conspiracy theory of liability. While acknowledging that there were some technical defects in the plea proceedings, the Wisconsin Court of Appeals ultimately agreed that Smith's plea to the conspiracy charge as a party to a completed crime was voluntarily and intelligently made. See State v. Smith, 2010 WI.App. 19, ¶ 5, 323 Wis.2d 276, 779 N.W.2d 723 (Dec. 23, 2009). Thereafter, the Wisconsin Supreme Court denied Smith's petition for review of this issue.

         Smith now seeks a writ of habeas corpus under 28 U.S.C. § 2254, contending as in state court that he did not knowingly or intelligently enter a plea to the conspiracy with a full understanding of the theory of liability asserted by the State in violation of the Due Process Clause found in the Fourteenth Amendment. In contrast, the respondent argues that review is barred because Smith did not fairly exhaust his federal claim in state court. Alternatively, the respondent maintains that Smith's claim is without merit.


         I. Exhaustion and the Doctrine of Procedural Default

         Typically, a federal court may not entertain a state prisoner's petition for habeas corpus unless he has first exhausted all remedies available in state court. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). The doctrine of exhaustion serves the interests of comity between federal and state sovereigns by giving state appellate courts a meaningful opportunity to consider and correct any alleged constitutional violations. See Lieberman v. Thomas, 505 F.3d 665, 670 (7th Cir. 2007). Inherent in this exhaustion requirement is the habeas petitioner's duty to “fully and fairly” present his federal claims to the state courts. See Malone v. Walls, 538 F.3d 744, 753 (7th Cir. 2008) (citations omitted). To fairly present a claim, a petitioner must raise the same operative facts and controlling legal principles before the state courts in a procedurally proper manner. See Picard v. Connor, 404 U.S. 270, 275 (1971); see also Baldwin v. Reese, 541 U.S. 27, 29 (2004). In other words, a petitioner is required to present the state courts with “the same [substantive] claim that he urges upon the federal courts.” Picard, 404 U.S. at 275-76.

         In his state appellate brief, Smith argued that he was entitled to withdraw his guilty plea to prevent a “manifest injustice, ” citing State v. Booth, 142 Wis.2d 232, 418 N.W.2d 20 (Ct. App. 1987). More specifically, Smith argued that a manifest injustice occurs when a plea is not entered knowingly, voluntarily and intelligently, citing State v. Giebel, 198 Wis.2d 207, 541 N.W.2d 815 (Ct. App. 1995), and Wis.Stat. § 971.08 (governing pleas of guilty and no contest).[3] Smith further argued that this was a “constitutional issue, ” citing several other state court cases -- State v. Bollig, 232 Wis.2d 561, 605 N.W.2d 199; State v. Van Camp, 213 Wis.2d 131, 569 N.W.2d 577 (1997); and State v. Harvey, 139 Wis.2d 353, 407 N.W.2d 235 (1987).

         While Smith's appellate brief makes no express reference to federal precedent, the state court cases he cited rely on a constitutional analysis under the Due Process Clause of the Fourteenth Amendment, specifically the requirement that a plea be voluntary, knowing and intelligently made. Moreover, as the Seventh Circuit has noted, “the Wisconsin standard that a plea must be knowingly, intelligently, and voluntarily entered is the same as the constitutional due process standard.” Warren v. Baenen, 712 F.3d 1090, 1102 (7th Cir. 2013) (citing Wis.Stat. ยง 971.08). Having framed his claim in terms of the constitutional due process standard applicable to determining the validity of a guilty plea, therefore, the court concludes that Smith's claim was fairly presented and adjudicated on the ...

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